KALPANA YOGESH DHAGAT, SINCE DECEASED THROUGH LEGAL HEIRS v. RELIANCE INDUSTRIES LIMITED

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10996 of 2002 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ? YES Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== KALPANA YOGESH DHAGAT, SINCE DECEASED THROUGH LEGAL HEIRS....Petitioner(s) Versus RELIANCE INDUSTRIES LIMITED....Respondent(s) ========================================================== Appearance: DECESED LITIGANT, ADVOCATE for the Petitioner(s) No. 1 MR UDAY R BHATT, ADVOCATE for the Petitioner(s) No. 1.1 - 1.3 MR KS NANAVATY SENIOR ADVOCATE WITH MR KEYUR GANDHI ADVOCATE AND MR NISARG DESAI ADVOCATE FOR NANAVATY ASSOCIATES, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/09/2016

1 By this writ application under Article 226 of the Constitution of Page 1 of 51 HC-NIC Page 1 of 51 Created On Sat Oct 22 06:48:16 IST 2016 India, the writ applicant (since deceased), now through her legal heirs, has prayed for the following reliefs: 15A. Be pleased to admit this petition and call for the records and proceedings of the initial dismissal and its revocation, substantial suspension and the departmental inquiry right upto the appeal stage. B. Be pleased to issue a writ or an appropriate writ or direction or order in the nature of an appropriate writ and quash and set aside the order of suspension, the departmental proceedings, its report namely the inquiry report, and quash and set aside the order of disciplinary authority and the appellate authority and declare that the departmental inquiry is vitiated and quash and set aside the same and the petitioner be ordered to be reinstated with all consequential benefits including back wages giving effect of wage revision including with interest and all other consequential benefits like privileges, promotions, etc. C. Be pleased to declare that the action of the respondent is illegal, baseless, malafide and violative of fundamental rights of the petitioner and pass such other and further orders including that of compensation and also pass orders of payment of balance of suspension allowance which would have been payable to the petitioner during the period of her suspension pending the departmental inquiry. D. Pending admission, hearing and final disposal of this petition, the petitioner be directed to be taken back on service and be taken back on service and be paid back wages, the balance of suspension allowance and all consequential benefits etc and pass such other and further orders as deemed fit. E. Cost of this petition be granted. F. Be pleased to pass such other and further reliefs, as the facts and circumstances of the present case may require.

2 The writ applicant joined the services of the Indian Petrochemicals Corporation Limited (now taken over by the Reliance Industries Limited) in the year 1970. The Indian Petrochemicals Corporation Limited (for short,

I.P.C.L.) was owned by the Government of India. It was a company incorporated under the Companies Act. The I.P.C.L. was a State within the meaning of Article 12 of the Constitution of India. Page 2 of 51 HC-NIC Page 2 of 51 Created On Sat Oct 22 06:48:16 IST 2016

3 The subject matter of challenge in this writ application is the order passed by the disciplinary authority dismissing the writ applicant from service as well as the order passed by the appellate authority affirming the order of dismissal from service.

4 When this writ application was filed in the year 2002, the I.P.C.L. was very much in existence. During the pendency of this writ application, a major development took place in the form of the Reliance Petro Investment Limited purchasing 20% of the shares of the I.P.C.L. The

I.P.C.L. ultimately got merged with the Reliance Petro Investment Limited vide order dated 16th August 2007 passed by this Court for amalgamation of the I.P.C.L. with the Reliance Petro Investment Limited. As a result of the amalgamation, the I.P.C.L. ceased to be a Government company. Indisputably, the Reliance Petro Investment Limited is not a State or an instrumentality of a State or an authority or a person within the meaning of Article 12 of the Constitution of India. In the wake of such development, the writ applicant preferred an application and impleaded the Reliance Industries Limited (for short, the R.I.L.) as the party respondent.

5 In such circumstances referred to above, a preliminary issue has been raised on behalf of the newly impleaded respondent company i.e. the R.I.L. that the present writ application is no longer maintainable and no relief can be granted against the respondent company as it is not a State or other authority under Article 12 of the Constitution of India.

6 The writ applicant, on the other hand, contends that the writ application when it was originally filed against the I.P.C.L. was maintainable and it would be unjust and unfair to nonsuit the writ applicant after so many years. The writ applicant contends that the Page 3 of 51 HC-NIC Page 3 of 51 Created On Sat Oct 22 06:48:16 IST 2016 ordinary rule of the litigation is that the rights of the parties stand crystallised on the date of commencement of the litigation and the right to relief should be decided with reference to the date on which the writ applicant entered the portals of the Court.

7 Mr. Uday R. Bhatt, the learned counsel appearing for the writ applicant has raised manifold contentions as regards the maintainability of this writ application at this stage having regard to the fact that the

I.P.C.L. is no longer in existence and it is the R.I.L. who is the contesting respondent as on date.

8 According to Mr. Bhatt, if a litigant has a right, he cannot be told that he has no legal remedy to enforce such right. The contention is that as the original writ applicant is no more, it may not be legally permissible for the legal heirs to file a civil suit and seek an appropriate declaration. According to Mr. Bhatt, if the relief prayed for in the civil suit is of a personal nature and character, then probably, it may not be permissible for the legal heirs to institute such a suit for declaration.

9 The second contention of Mr. Bhatt is that this writ application has been filed since the fundamental rights of the writ applicant have been infringed. It is only this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can enforce the fundamental rights of the writ applicant alleged to have been violated. A Civil Court cannot give any declaration as regards the fundamental rights and also cannot enforce the fundamental rights. In such circumstances, according to Mr. Bhatt, this writ application should be held to be maintainable even though the R.I.L is not a State within the meaning of Article 12 of the Constitution of India. According to Mr. Bhatt, when the I.P.C.L. was taken over by the R.I.L., all the rights and obligation of the I.P.C.L. could be said to have been taken over by the Page 4 of 51 HC-NIC Page 4 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Reliance Petro Investment Limited, and if that be so, then this writ application is maintainable against the R.I.L. for the purpose of enforcing the obligations of the I.P.C.L.

10 Mr. Bhatt would submit that the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is very wide and is meant for doing substantial justice. This Court, according to Mr. Bhatt, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, can do anything and everything.

11 Mr. Bhatt would submit that the I.P.C.L. did not cease to be a State on account of disinvestment at the end of the Central Government, but it was taken over by the R.I.L. pursuant to the order passed by this Court in the amalgamation proceedings under the Companies Act.

12 According to Mr. Bhatt, in the cases of disciplinary proceedings and consequential order of dismissal from service, the liability of the company, who, at the relevant point of time, was a State within the meaning of Article 12 of the Constitution, can be enforced upon the private company taking over the erstwhile government company.

13 Mr. Bhatt, in support of his submissions, has placed strong reliance on the following decisions: (1) SHRI ANANDI MUKTA SADGURU SHREE MUKTAJEE VANDAS SWAMI SUVARNA JAYANTI MAHOTSAV SMARAK TRUST VS. V.R. RUDANI [(1989) 2 SCC 691] (2) TEXTILE LABOUR ASSOCIATION VS. STATE OF GUJARAT [(1995) 1 GLH 12] Page 5 of 51 HC-NIC Page 5 of 51 Created On Sat Oct 22 06:48:16 IST 2016 (3) MAZDOOR SABHA VS. STATE OF GUJARAT [(1992) 1 GLH 309] (4) PRASHANT ARUN DAYAL & ORS VS. D.B. CORP. LIMITED [2015 (1) Labour Industrial Cases 934] (5) G. GOVINDA RAJULA VS. ANDHRA PARADESH STATE CONSTRUCTION [AIR 1987 SC 1801] (6) JANET JAYAPAUL VS. SRM UNIVERSITY AND OTHERS [AIR 2016 SC 73] (7) ZEE TELEFILMS VS. UNION OF INDIA [(2005) 4 SCC 649]

14 On the other hand, this writ application has been vehemently opposed by Mr. K.S. Nanavaty, the learned senior advocate appearing for the R.I.L. on the ground of its maintainability. Mr. Nanavaty would submit that the subsequent event will definitely have an impact on the rights and obligations of the parties. However, according to Mr. Nanavaty, when the writ application is not maintainable against the R.I.L., then even assuming for the moment that all the rights and obligation of the I.P.C.L. were taken over by the R.I.L., this Court cannot issue any writ to a company which is not a State or an instrumentality of a State or any other authority under Article 12 of the Constitution of India. He would submit that if under the law, a party is not amenable to the writ jurisdiction, he would so become amenable merely because he has represented to the other or has agreed with the other that he would be so amenable.

15 Mr. Nanavaty, would submit that it is a settled law that the jurisdiction cannot be vested by a contract in a Court which otherwise Page 6 of 51 HC-NIC Page 6 of 51 Created On Sat Oct 22 06:48:16 IST 2016 does not have the jurisdiction. Similarly, if this Court has no jurisdiction to entertain a writ against the R.I.L., which as of today is a private entity, merely because the R.I.L. at the time of taking over the I.P.C.L. might have agreed that the proceedings pending against the I.P.C.L. would be continued, would not vest jurisdiction with this Court to entertain a writ against the R.I.L.. Mr. Nanavaty, in support of his submissions, has placed reliance on the following decisions: (1) Asulal Loya vs. Union of India and others [2008 (106) DRJ 100] (2) Ladley Mohan vs. Union of India and others [Writ Petition (Civil) No.1479 of 1995 and 4592 of 1998 decided on 4th May 2010 by a learned Single Judge of the High Court of Delhi] (3) An order passed by a Division Bench of this Court in the case of Chandrashekhar Jayendrarai Chhaya vs. IPCL Limited [Letters Patent Appeal No.736 of 1994 decided on 6th April 2005] (4) An order passed by a Division Bench of this Court in the case of IPCL Retired Employees Association vs. Indian Petrochemical Corporation Limited and others [Letters Patent Appeal No.970 of 2008 decided on 6th October 2008] (5) A judgment of this Court in the case of Manoj Ambaram Khahar vs. Indian Red Cross Society [Special Civil Application No.7328 of 2014 decided on 12th July 2016].

16 Mr. Nanavaty submits that the preliminary contention as regards the maintainability of this writ application deserves to be upheld and the Page 7 of 51 HC-NIC Page 7 of 51 Created On Sat Oct 22 06:48:16 IST 2016 writ application be rejected as not maintainable. ANALYSIS:

17 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether this writ application is maintainable as on date in light of the developments which took place during the pendency of this writ application as discussed above.

18 I need not discuss the relevant test for determining whether the R.I.L. is an agency or an instrumentality of the State Government since the learned counsel appearing for the writ applicant concedes that the R.I.L. is not a State or an instrumentality of a State or an agency of the State. The principal argument of the learned counsel appearing for the writ applicant is that at the time when the writ application was filed and this Court issued Rule, the I.P.C.L. was very much in existence, and therefore, it would be unjust and unfair to nonsuit the writ applicant after so many years. To put it in other words, the submission is that the ordinary rule of litigation is that the rights of the parties stand crystallised on the date of commencement of the litigation and the rights to relief should be decided with reference to the date on which the writ applicant entered the portals of the Court.

19 It is wellsettled that ordinarily, no writ lies against a private body, except a writ of Habeas Corpus. A writ would lie against a private body provided the functions of any body or entity are essentially in the nature of public duty or akin to the functions of a State. The writ of mandamus lies to secure the performance of a public or a statutory duty. Page 8 of 51 HC-NIC Page 8 of 51 Created On Sat Oct 22 06:48:16 IST 2016 A writ of mandamus or a remedy under Article 226 of the Constitution is preeminently a public law remedy and is not generally available as a remedy against the private wrongs. It is used for the enforcement of various rights of the public or to compel the public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over the administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging public function, the pubic law remedy can be enforced. The duty cast upon a public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be a public law element in such action. The respondent Reliance Petro Investment Limited has nothing to do with the public as such. It is a company engaged in the business of petroleum products. Neither the Union nor the State has any control over the respondent company. Mere issue of a licence by the Union or State Government for the purpose of running the company by itself will not make it an instrumentality of a State or an agency of a State.

20 The argument of the learned counsel appearing for the writ applicant that this Court under Article 226 of the Constitution of India can do anything and everything for the purpose of doing substantial justice has failed to impress me for more than one reason. Article 226(1) of the Constitution of India states: Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises Page 9 of 51 HC-NIC Page 9 of 51 Created On Sat Oct 22 06:48:16 IST 2016 jurisdiction, to issue to any person, or authority, including in appropriate cases, any Government, within those 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 and for any other purpose.

21 The language of Article 226 is no doubt very wide. It states that a writ can be issued to any person or authority and for enforcement of right conferred by Part III and for any other purpose. However, the aforesaid language in Article 226 cannot be interpreted and understood literally. The Court should not apply the literal rule of interpretation while interpreting Article 226. If we take the language of Article 226 literally it will follow that a writ can be issued to any private person or to settle even the private disputes. If we interpret the word for any other purpose literally it will mean that a writ can be issued for any purpose whatsoever, e.g. for deciding private disputes, for grant of divorce, succession certificate etc. Similarly, if we interpret the words to any person literally it will mean that a writ can even be issued to the private persons. However, this would not be the correct meaning in view of the various decisions of the Supreme Court in which it has been held that a writ will lie only against the State or instrumentality of the State vide Chander Mohan Khanna v. N.C.E.R.T (1991) (4) SCC 578, Tekraj Vasandhi v. Union of India AIR 1988 SC 496, General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003) 8 SCC 639, Federal Bank Ltd. v. Sagar Thomas & Co. (2003)

10 SCC 733, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others ( 2002 (5) SCC 111) etc. In General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (supra), the Supreme Court observed that a writ will lie against a private body only when it performed a public function or discharged a public duty. The R.I.L. is not performing a public function nor discharging a public duty. It is only doing a commercial activity. Hence, no writ lies against Page 10 of 51 HC-NIC Page 10 of 51 Created On Sat Oct 22 06:48:16 IST 2016

22 The correct interpretation of the aforesaid words in Article 226 is that a writ can ordinarily be issued to a person to whom writs were traditionally issued by the British Courts on the wellestablished principles. Similarly, the words, for any other purpose have to be interpreted in the narrower sense to mean that a writ can be issued for the purpose for which the writs were traditionally issued by the British Courts on the wellestablished principles. The British Courts did not ordinarily issue writs to private persons except a writ of habeas corpus.

23 No doubt the power to issue writs under Article 226 is wider than those of the British Courts vide Dwarika Nath v. ITO (AIR 1966 SC 81 ), but in my opinion they are not so wide as to permit the Judges to do anything they like in the writ jurisdiction. There are well settled principles governing the exercise of power under Article 226 as laid down in the various decisions of the Supreme Court, and these principles have laid down several limitations to the exercise of such power. For instance, ordinarily a writ will not be issued to a private body except a writ of habeas corpus. [See: Management of GE Power controls Private Limited vs. Secretary (2005(1) MadLJ 165]

24 In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of VST Industries Limited vs. VST Industries Workers Union [(2001) 1 SCC 298]. In the said case, the appellant was a company incorporated under the Companies Act, 1956 with the object of manufacture and sale of cigarettes. The members of the general public were the shareholders and the shares of the company Page 11 of 51 HC-NIC Page 11 of 51 Created On Sat Oct 22 06:48:16 IST 2016 were traded in through the various stock exchanges in the country. A petition was filed in the High Court under Article 226 of the Constitution of India by the respondent i.e. the workers Union seeking for a writ of mandamus to treat the members of the Union who were employees working in the canteen of the appellant factory as the employees of the appellant and for grant of monetary and other consequential benefits. On behalf of the appellant, a contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company, which is not an authority or a person against whom a writ would lie. It was also submitted that the company did not discharge any public duty and hence the writ would not be issued. The learned Single Judge of the High Court which decided the matter in the first instance held that a writ would lie against a company in a private management following the decision of the Andhra Pradesh High Court in the case of T. Gattaiah vs. Commissioner of Labour [1981 (2) LLJ 54. In T. Gattaiah (supra), the High Court held that the establishment of a canteen and its maintenance is a statutory requirement; under Section 46 of the Factory Act, 1948, a public duty was imposed on the company to establish and maintain the company; inasmuch as the members of the Union working in the canteens they were entitled to seek a mandamus. In short, a learned Single Judge took the view that when a public duty is discharged by a private management, a writ of mandamus would lie and could be issued under Article 226 of the Constitution. The preliminary contention as regards the maintainability was answered accordingly. On appeal, the Division Bench of the High Court affirmed the view taken by the learned Single Judge. The Division Bench took the view that the form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in light of the Page 12 of 51 HC-NIC Page 12 of 51 Created On Sat Oct 22 06:48:16 IST 2016 positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. The matter reached upto the Supreme Court. The Supreme Court took the view that the High Court fell into error that the appellant company was amenable to the writ jurisdiction. I may quote the observations of the Supreme Court as contained in paras 6, 7, 8 and 9 as under:

6. In the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989)

2 SCC 691], the contention, similar to the present case, had been raised. Writ petitioners were seeking for a writ of mandamus to put them back in the college and they were claiming only a terminal benefit or arrears of salary payable to them. In that background, it was observed that if the rights are purely of a private character no mandamus could be issued and also, if the management of the college were purely a private body with no public duty mandamus would not lie. In that case, the respondent was managing the affiliated college to which public money is paid as Government aid which played a major role in the control, maintenance and working of educational institutions. The aided institutions, it was noticed, like Government institutions discharge public function by way of imparting education to students. They were subject to the rules and regulations of the affiliating University and their activities were closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character inasmuch as the service conditions of the academic staff were controlled by the University particularly in regard to their pay scales and the protection by University decisions creating a legal right or duty relationship between the staff and the management. When there is existence of such relationship mandamus could not be refused to such an aggrieved party. It was further explained in that decision that the term 'authority' used in Article 226 of the Constitution should receive a liberal meaning unlike the term in Article 12, which is only for the purpose of enforcement of fundamental rights under Article 32. The words 'any person or authority' used in Article 226 are, therefore, not be confined only to statutory authorities or instrumentalities of the State but would cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in the light of positive obligation owed by the person or authority to the effected party, no matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.

7. In De Smith, Woolf and Jowell's Judicial of Administrative Action, 5th Page 13 of 51 HC-NIC Page 13 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Edn., it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing or possibly its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the Court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions : (1) The test of whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a 'public" or a "private" body. (2) The principles of judicial review prima facie govern the activities of bodies performing public functions. (3) However, not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function : (a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and (b) Where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic Tribunals) has been agreed by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute.

8. The High Court has relied very strongly on the decision of a learned single Judge in T. Gattaiah's case (1981 Lab IC 942) wherein it was stated that a writ may lie under Article 226 of the Constitution against a company incorporated under the Companies Act, 1956 as it is permissible to issue a writ against any person. Prima facie, therefore, a private person or an incorporated company cannot be taken out of the sweep and the Page 14 of 51 HC-NIC Page 14 of 51 Created On Sat Oct 22 06:48:16 IST 2016 contemplation of Article 226 of the Constitution. That decision does not take note of the fact as to the nature of the functions that a person or an incorporated company should be performing to attract judicial review under Article 226 of the Constitution. In Anadi Mukta's case (AIR 1989 SC 1607 : 1989 Lab IC 1550) this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharge a public duty Article 226 of the Constitution can be invoked. In the present case, the appellant is engaged in the manufacture and sale of cigarettes. Manufacture and sale of cigarettes will not involve any public function. Incidental to that activity there is an obligation under Section 46 of the Act to set up a canteen when the establishment has more than 250 workmen. That means, it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. In other words, it is only a labour welfare device for the benefit of its work force unlike a provision where Pollution Control Act makes it obligatory even on a private company not to discharge certain effluents. In such cases public duty is owed to the public in general and not specific to any person or group of persons. Further the damage that would be caused in not observing them is immense. If merely what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty. Thus, we are of the view that the High Court fell into error that appellant is amenable to writ jurisdiction.

9. This Court in Indian Petrochemicals Corporation Ltd. v. Shramik Sena, (1999) 6 SCC 439 : (1999 AIR SCW 2740 : AIR 1999 SC 2577 : 1999 Lab IC 3078), referred to the decisions in Parimal Chandra Raha's case (1995 AIR SCW 1609 : AIR 1995 SC 1666 : 1995 Lab IC 2064); Reserve Bank of India v. Workmen, (1996) 3 SCC 267 : (1996 AIR SCW 1298 : AIR 1996 SC 1241 : 1996 Lab IC 1048) and M.M.R. Khan v. Union of India, 1990 (Supp) SCC 191 : (AIR 1990 SC 937), and held that the workmen of a statutory canteen, as in the present case, would be workmen of an establishment for the purposes of the Act only and not for other purposes. Thereafter, this Court further examined whether the material on record would show that the workmen are employees of the management for all purposes and adopted some of the tests as follows :

1. The canteen has been there since the inception of the appellant's factory.

2. The workmen have been employed for long years and despite a change of contractors the workers have continued to be employed in the canteen.

3. The premises, furniture, fixture, fuel, electricity, utensils, etc. have been provided for by the appellant. Page 15 of 51 HC-NIC Page 15 of 51 Created On Sat Oct 22 06:48:16 IST 2016

4. The wage of the canteen workers have to be reimbursed by the appellant.

5. The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor.

6. The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant.

7. The workmen have the protection of continuous employment in the establishment. Thus, the Supreme Court dealt with a situation of the workers employed in a canteen ran through a contractor claiming to be the employees of the company. The Supreme Court held that the company was not performing any public duty and therefore, no writ can be issued. The Supreme Court held that the words any person or authority used in Article 226 of the Constitution of India, would mean that the writ was not to be confined only to the statutory authorities or instrumentalities of the State, but would also cover any person or body performing public duty. However, as the Supreme Court found that the company was not involved in any public function, the writ petition was not maintainable.

25 The dictum, as explained by the Supreme Court, applies on all fours to the case in hand.

26 The power is wide enough to reach any one dealing with any situation for the purpose of enforcing not only the fundamental rights, but also for any other purpose and to enforce the legal rights of the citizens and statutory obligations and duties on the part of the Governmental, Statutory authorities, private companies and individuals. Page 16 of 51 HC-NIC Page 16 of 51 Created On Sat Oct 22 06:48:16 IST 2016 The series of restrictions which are enumerated by the various Courts are only self imposed restraints aimed at using the extraordinary power only to the deserving situations. There is no difficulty while exercising the power as against the Government, Statutory authorities, Corporations and the Establishments coming within the definition of "State" under Article 12 of the Constitution of India. But when it comes to issuing a writ against the private companies, establishments and individuals, the ground for exercising the power are restricted and narrowed down having regard to the extraordinary nature of the power and the availability of alternative remedies. Some of the grounds which would weigh against the exercise of the power are (i) availability of effective alternative remedy (2) absence of any public duty; (3) laches and unreasonable delay in approaching the Court; (4) Need to deal with and adjudicate upon the complicated facts which would require detailed evidence oral or documentary etc. These are the factors which would dissuade the Courts from exercising the jurisdiction.

27 In ROHTAS Industries vs. its Union [1976 AIR 425 : 1976 SCR (3) 12], the Supreme Court observed as follows: "9. (1) (a) & (b): The expansive and extraordinary power of the High Courts under Article

226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any (other) purpose, even one for which another remedy may exist. The amendment to Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person.' But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been Page 17 of 51 HC-NIC Page 17 of 51 Created On Sat Oct 22 06:48:16 IST 2016 the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."

28 In the case of I.P.C.L. Retired Employees (supra), a Division Bench of this Court made the following observations as follows: This Appeal, preferred under clause 15 of the Letters Patent, arises from the order dated 24th March, 2008 passed by the learned Single Judge in above Special Civil Application No.8027 of 1999. The appellants writ petitioners are the employees of the erstwhile Indian Petrochemicals Corporation Limited (hereinafter referred to as the IPCL), the State within the meaning of Article 12 of the Constitution. Pending the petition, the IPCL has been taken over by the Reliance Petro Investment Limited. The said Reliance Petro Investment Limited is not a State within the meaning of Article 12 of the Constitution. The writ petition has been disposed of by the learned Single Judge as not maintainable under Article 226 of the Constitution. We agree with the learned Single Judge.

29 In Chandrashekhar Chhaya (supra), a Division Bench of this Court, observed as follows: #At the very outset, the learned counsel for the respondent submits that the respondentIndian Petrochemicals Corporation Ltd. has been taken over by M/s. Reliance Petro Investments Ltd., and as such the respondent is nonexistent and the establishment which has taken over the respondent is not a State within the meaning of Article 12 of the Constitution. #. Learned counsel for the petitionerappellant wanted to contest the issue submitting that the Special Civil Application was filed in the year 1982 and if during pendency of this writ application, because of the disinvestment or because of taking over of the Central Government's Corporation, the Corporation has become nonexistent, their rights would not suffer a dent. #. In the opinion of this Court, the question would have been different if writ had already been issued in favour of the appellants and Indian Petrochemicals Corporation Ltd. had been appellant before us, at that point of time, this argument could assume some importance. Page 18 of 51 HC-NIC Page 18 of 51 Created On Sat Oct 22 06:48:16 IST 2016 #. As the respondent is not in existence and the authority/establishment, which has taken over it, is not falling within the mischief of Article 12 of the Constitution, we must observe that the appeal has become infructuous. It is accordingly dismissed. We, however, make it clear that if law provides any other forum to the petitioners for redressal of their grievance, then they would be free to approach such forum in accordance with law. As the Letters Patent Appeal is dismissed, Civil Application No. 3069 of 1994 is also dismissed.

30 Thus, the two Division Bench judgments of this Court referred to above make it very clear that the Indian Petrochemicals Limited, having been taken over by M/s. Reliance Petro Investment Limited, the R.P.I.L. being not a State within the meaning of Article 12 of the Constitution, the writ application would be said to have become infructuous. The Division Bench also clarified and such clarification answers the contention of Mr. Bhatt that the question would have been different if the writ had already been issued in favour of the writ applicant herein and the I.P.C.L. would have been in appeal. Mere issue of Rule would not amount to determining the final rights of the parties or issue of a writ.

31 Let me now look into the two decisions of the Delhi High Court on which strong reliance has been placed on behalf of the respondent company.

32 In Asulal Loya (supra), a writ petition was filed challenging the order of termination by the Bharat Aluminum Company Limited, which was a Government company. During the pendency of the writ petition, the said Bharat Aluminum Company Limited was privatised and thereupon it was contended that the writ petition was no longer maintainable and no relief could be granted against the Bharat Aluminum Company Limited since on that date it was not a State or other authority under Article 12 of the Constitution of India. The Page 19 of 51 HC-NIC Page 19 of 51 Created On Sat Oct 22 06:48:16 IST 2016 counsel for Asulal Loya, however contended that the writ petition when it was originally filed was maintainable and it would be unjust and unfair to nonsuit him after so many years; it was further contended that the ordinary rule of litigation is that the rights of the parties stand crystalised on the date of commencement of the litigation and the rights to relief should be decided with reference to the date on which the petitioner entered the portals of the Court. The Court, while dismissing the writ application, upheld the preliminary objection raised by the company that it was not a State and, therefore, not amenable to the writ jurisdiction, observed as follows: ...I may note here that Article 267 of the Constitution stipulates that provisions of General Clauses Act, 1872 can be applied for interpretation of the Constitution. However, Section 6 of the General Clauses Act, it has been held is not applicable to the Constitution of India. Allahabad High Court in Seth Jagamander Das and Others versus State, reported in AIR 1951 Allahabad 703 has held that Section 6 applies where any Central Act or Regulation is repealed. Constitution of India is not a Central Act or Regulation. The said decision and observations in this regard of Allahabad High Court were approved by the Supreme Court in the appeal preferred by State of Uttar Pradesh against said decision, titled State of Uttar Pradesh versus Seth Jagamander Das reported in AIR 1954 SC 683. Moreover, normally inchoate rights which have not matured, do not survive. A mere hope or expectation does not confer any right.

3. It is fairly well settled that a writ petition is not maintainable against a private limited company or a public limited company in which the State does not exercise all pervasive control. In Binny W.P.(C) No.3043/1991 Page No.4 Limited and Another versus V. Sadasivan and Others, reported in (2005) 6 SCC 657, the Supreme Court has held that a writ petition under Article 226 of the Constitution is normally issued against public authorities and can also be issued against private authorities when they are discharging public functions and the decision which is sought to be corrected or enforced must be in discharge of a public function. In the present case, the issues and questions involved do not relate to public functions.

4. At this stage, I may note a decision of the Supreme Court in State of U.P. versus Mohd. Nooh, reported in AIR 1958 SC 86 in which it was observed that Article 226 of the Constitution of India does not have retrospective effect. Page 20 of 51 HC-NIC Page 20 of 51 Created On Sat Oct 22 06:48:16 IST 2016

5. A single Judge of this Court in Writ Petition (Civil) No. 5236/1997 titled BALCO Officer's Association and Another versus Bharat Aluminium Company Limited and Another had upheld a similar preliminary objection raised by the respondent company, observing as under: " Learned counsel for the respondents points out that during the pendency of these proceedings, the Bharat Aluminium Company has been pravitised(sic), in that all the shares have been transferred to Sterlite Industries India Limited. As a consequence it is no longer amenable to writ jurisdiction of this court. In view of this statement and having considered the record, the writ petition is disposed off. It is however open to the petitioner to approach the concerned legal W.P.(C) No.3043/1991 Page No.5 forum for seeking redressal of any grievance, in accordance with law. The writ petition and all pending applications are disposed off."

33 Thus, the Delhi High Court considered the following:

i. that Section 6 of the General Clause Act 1897 does not apply to the Constitution of India;

ii. that a writ petition is not maintainable against a Private Limited Company or a Public Limited Company in which the State does not exercise all pervasive control;

iii. that a Government servant having a protection of not only Articles

14 and 16 of the Constitution of India but also of Article 311 has no absolute right to remain in service;

iv. that the petitioner in that case was not remediless and the apprehension expressed of limitation for taking appropriate proceedings before appropriate fora can be taken care of.

34 In Ladley Mohan (supra), the Delhi High Court followed the dictum explained in Asulal Loya (supra) and dismissed the writ petition as not maintainable. Ladley Mohan, a qualified Engineer, had joined the employment of the respondent Modern Food Industries (India) Limited (MFIL) as the Engineering Manager (Project). The company disallowed Ladley Mohan to cross the efficiency bar at the stage of the basic pay Page 21 of 51 HC-NIC Page 21 of 51 Created On Sat Oct 22 06:48:16 IST 2016 though it was due to be allowed to him and thereby stopping his increment at that stage. Ladley Mohan pleaded that the MFIL was an instrumentality of the Union of India, and therefore, the writ application was maintainable. When the petition was taken up for hearing, the counsel for the Hindustan Unilever Limited informed the Court that during the pendency of the writ petition, on account of privatisation, the MFIL, who was an undertaking of the Union of India, stood disinvested and the Unit had been taken over by the Hindustan Unilever Limited. The Hindustan Unilever Limited questioned the continued maintainability of the writ petition for the reason that the MFIL was no longer a public sector undertaking. The Court noted the averments of the affidavit filed on behalf of the Hindustan Unilever Limited. In the additional affidavit supported by documents, it was stated that the MFIL, being a Public Sector Undertaking at the time of institution of the writ petition, was a "State" within the meaning of Article 12 of the Constitution of India and hence amenable to the writ jurisdiction of the Court; however the Government of India vide Notification dated 2nd March, 2000 disinvested its shareholding in the MFIL to the extent of 74% in favour of the Hindustan Lever Ltd.; pursuant to the disinvestment the MFIL became a joint venture company of Government of India and Hindustan Lever Ltd.; thereafter vide Notification dated 6th January, 2003, the remaining equity shares were also transferred in favour of the Hindustan Lever Ltd. and the MFIL became a subsidiary of the Hindustan Lever Ltd.; that no share capital of the MFIL was held by the Government and none of the Directors on the Board of the MFIL were the nominees of the Government of India; that post such disinvestment the MFIL had ceased to be a "State" under Article 12 of the Constitution of India; that after obtaining the approvals of the concerned Courts, the MFIL had amalgamated with the Hindustan Lever Ltd. w.e.f. 30th March, 2007 and had ceased to exist as a legal entity. It was stated in the affidavit that Page 22 of 51 HC-NIC Page 22 of 51 Created On Sat Oct 22 06:48:16 IST 2016 after such disinvestment, the contractual obligations as claimed by the petitioner could not be enforced against the MFIL / Hindustan Lever Ltd under the writ jurisdiction of the Court and hence the writ petition was not maintainable. The Court held as under:

6. The petitioner sought opportunity to respond to the aforesaid additional affidavits and has filed a response thereto. The petitioner has not controverted the factual averments in the affidavits. It is the plea of the petitioner that MFIL/Hindustan Lever Ltd in its present status, cannot be permitted to shirk all responsibility which it has taken over. It is pleaded that as per the terms on which Hindustan Lever Ltd has acquired the shares of MFIL from Union of India, any suit, appeal or other legal proceedings of whatsoever nature by or against MFIL pending on that date is not to abate or be discontinued or in any way to be prejudicially affected by reason of the transfer of the undertaking of MFIL and such proceedings are to be continued against the transferee company i.e. Hindustan Lever Ltd. in the same manner and to the same extent as it would or might have been continued against the transferor company (MFIL) if the scheme had not been made.

7. The petitioner appearing in person and the counsel for the Hindustan Unilever Ltd. have been heard. The petitioner besides relying on the clause aforesaid has also contended that he has been litigating in these petitions for the last 15 years and if now relegated to a suit, long time will be taken in disposal thereof also, causing undue prejudice to him.

10. The petitioner next contends that Asulal Loya did not consider the clause as aforesaid. Undoubtedly, as per the said clause, the proceeding pending on the date of privatization against MFIL were to be continued against MFIL/Hindustan Lever Limited without prejudicially affecting the same; the petitioner would certainly be affected by this court holding the writ petition to be not maintainable. However, the question that arises is that, when the writ petition is not maintainable against MFIL/Hindustan Lever Limited, could MFIL/Hindustan Lever Limited by agreement aforesaid, make itself amenable to the writ jurisdiction. It is not open for a person/party to agree or disagree to the amenability to the writ jurisdiction. If under the law, a party is not amenable to the writ jurisdiction, he would not so become amenable merely because he has represented to the other or has agreed with the other that he would be so amenable. It is a settled principle of law that jurisdiction cannot be vested by contract in a court which otherwise does not have the jurisdiction. Page 23 of 51 HC-NIC Page 23 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Similarly, if this court has no jurisdiction to entertain a writ against MFIL/Hindustan Unilever Limited, which as of today is a private entity, merely because Hindustan Lever Ltd at the time of acquiring the shares of MFIL from the Government agreed that the proceedings then pending against MFIL would be continued, would not vest jurisdiction in this court to entertain a writ against MFIL/ Hindustan Unilever Limited.

11. The writ petitions therefore cannot continue and are dismissed as not maintainable. It is clarified that this court has not gone into the merits of the matter and the petitioner is at liberty to approach any forum for redressal of his grievance and the time spent by him in these proceedings shall be taken into consideration for the purpose of limitation. Section 14 of the Limitation Act, 1963 gives protection in such cases. In the facts and circumstances, there will be no order as to costs.

35 I could also lay my hands on one order passed by a Division Bench of the Bombay High Court in the case of Tarun Kumar Banerjee vs. Bharat Aluminium Company Limited and another [Writ Petition No.1461 of 2003 decided on 25th April 2008], wherein the very same issue fell for the consideration of the Court. The order reads as under:

1. Both the petitions were filed against Bharat Aluminum Co. Ltd. When the petitions were filed, it was a Government of India enterprise. We are told by the Respondent that they had filed an affidavit on 2231996 thereby pointing out that Bharat Aluminum co. Ltd. has been privatised and share of more than 50% have been transferred to Sterlit Industries India Ltd. and as a consequence Bharat Aluminium Company Ltd is not a state and is not amenable to writ jurisdiction of this Court.

2. In view of this submission we dispose of both the petitions while granting the Petitioner liberty to approach any other forum for redressal of their grievance if so advised. The time spent by the Petitioners in prosecuting these proceeding shall be taken into consideration for the purpose of limitation in case the Petitioner choose any such remedy where the question of limitation would be relevant. The order passed by the Division Bench of the Bombay High Court referred to above was challenged before the Supreme Court by filing the Special Leave to Appeals (Civil ) Nos.5185 5186 of 2009. The Supreme Court, while upholding the view taken by the Bombay High Court, Page 24 of 51 HC-NIC Page 24 of 51 Created On Sat Oct 22 06:48:16 IST 2016 observed as under vide order dated 6th May 2010: These Special Leave Petitions are directed against the final judgment and order dated 25th April, 2008, passed by the Bombay High Court in Writ Petition No.1229/1998 and Writ Petition No.1461/2003, dismissing the writ petitions filed by the petitioner challenging his transfer from Bombay to Korba and, subsequently, his termination from service. When the Writ Petitions were taken up for hearing by the High Court, it was found, that on account of disinvestment, the Company was no longer "State" within the meaning of Article 12 of the Constitution and was not, therefore, amenable to writ jurisdiction. The Writ Petitions were, accordingly, disposed of granting liberty to the petitioners to approach any other forum for redressal of their grievances, if so advised. It was also indicated that the time spent by the petitioners in prosecuting the proceedings before the High Court would be taken into consideration for the purpose of computing limitation in case the petitioner chose any such remedy where the question of limitation would be relevant. In these Special Leave Petition, at one stage, a question had arisen as to whether the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, would apply to the respondent No.1Company after privatization and, in that context, we had requested the learned Solicitor General to assist us. Since then, however, a decision has been rendered by this Court in Civil Appeal No.1858 of 2007, where the said question in the context of Section

47 and 2(k) of the Act relating to establishments has been answered on the finding that Section 47 would not apply to establishments which do not come under the definition of establishment in Section 2(k). Accordingly, we are not going into this aspect any further. However, what is still required to be considered is whether the petitioner would be entitled to any further remedy under the aforesaid Act such as under Sections 62 and 63. In view of the liberty granted by the High Court to approach any other forum, if so advised, and since we are not adjudicating the question as to whether the said Act applies to the petitioner or not, we make it clear that the petitioner may apply before the authorities under the Act or before the Civil Court where the said question can be gone into in accordance with law. The Special Leave Petitions are disposed of with the aforesaid observations.

36 Where the order rejecting an S.L.P. is a speaking order, that is, Page 25 of 51 HC-NIC Page 25 of 51 Created On Sat Oct 22 06:48:16 IST 2016 where reasons have been assigned by the Supreme Court for rejecting the petition for the special leave and are stated in the order still the order remains the one rejecting the prayer for the grant of leave to appeal. The petitioner could be said to have been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of the Supreme Court. Here also the doctrine of merger would not apply. But the law stated or declared by the Supreme Court in its order shall attract the applicability of Article 141 of the Constitution. The reasons assigned by the Supreme Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, Tribunal or authority to express any opinion in conflict with or in departure from the view taken by the Supreme Court because permitting to do so would be subversive of the judicial discipline and an affront to the order of the Supreme Court. However, this would be so not by reference to the doctrine of merger. A speaking order refusing the leave to appeal has two implications. First, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article

141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in the subsequent proceedings between the parties. Page 26 of 51 HC-NIC Page 26 of 51 Created On Sat Oct 22 06:48:16 IST 2016 [See: Kunhayammed and others vs. State of Kerala and another, AIR 2000 SC 2587(1)]

37 I have also considered the decisions relied upon by Mr. Bhatt, the learned counsel appearing for the writ applicant in support of his submissions, more particularly, the two decisions of the Supreme Court (1) Zee Telefilms Ltd. and another vs. Union of India and others [(2005) 4 SCC 649] (2) Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others vs.

V.R. Rudani and others [(1989) 2 SCC 691]. Both the decisions are of no avail to the writ applicant.

38 In both the aforenoted decisions, the Supreme Court has taken the view that the term authority appearing in Article 226 of the Constitution of India would cover any other person or body performing public duty. The guiding factor, therefore, is the nature of duty imposed on such a body namely, public duty to make it eligible to Article 226 of the Constitution.

39 The functions of Reliance Petro Investment Limited, by any stretch of imagination, are not in the nature of public duty or akin to the functions of the State.

40 I must look into one Division Bench decision of the Calcutta High Court in the case of Ashok Kumar Gupta and others vs. Union of India and others [AIR 2007 Calcutta 195]. This judgment has not been relied upon by either of the parties. However, since the ratio to a certain extent, fortifies the submissions canvassed on behalf of the writ applicant as regards the maintainability of this writ application, I must look into the same. In the said case, on behalf of the respondent company, a preliminary objection was raised regarding the Page 27 of 51 HC-NIC Page 27 of 51 Created On Sat Oct 22 06:48:16 IST 2016 maintainability of the appeal in view of the cessation of the status of the respondent company. The writ petition out of which the appeal arose was filed when the respondent company was treated as a sick company and the question of revival was pending before the BIFR. The writ petitioners, who were employees of the Jessop and Company Limited took voluntary retirement under the Voluntary Retirement Scheme, 1998 during March to October 1998. The writ petitioners prayed in the writ petition for the recomputation of the benefits of the writ petition of pay scales pursuant to the policy decision of the Government of India. The scheme for rehabilitation sanctioned by the BIFR fell through. Finally, the Government of India effected disinvestments by transferring its shares to a private party. It was submitted on behalf of the respondent company that the said Jessop and Company had ceased to be a Government company or an authority within the meaning of Article 12 of the Constitution of India in view of the privatisation of the said company. The counsel of the respondent Jessop and Company, on commencement of the hearing of the appeal, raised a preliminary objection regarding the maintainability of the appeal on the ground that the said Jessop and Company had ceased to be a Government company and therefore, not amenable to the writ jurisdiction. It was submitted that an appeal being a continuation of the writ proceeding, the appellants were not entitled to pursue the matter any longer as no writ could be issued against the private management of the Jessop and Company. The appellants therein prayed for the recomputation of their Voluntary Retirement Scheme benefits on the basis of the order of the Government of India in relation to the revision of pay. On behalf of the respondent company, it was submitted that the circulars on which reliance was placed for seeking the benefits could not be said to be binding on the Jessop and Company. When Jessop and Company was a Page 28 of 51 HC-NIC Page 28 of 51 Created On Sat Oct 22 06:48:16 IST 2016 public sector enterprise, the Government of India could dictate to it in financial matters as the said government of India exercised deep and pervasive control financially, administratively and functionally over the said Jessop and Company at that point of time. After privatisation of the Jessop and Company, those circulars would not bind the said company. While answering the preliminary objection raised by the respondent company as regards the maintainability of the appeal, it was submitted on behalf of the appellants that the appeal was valid at the time of commencement and could not be said to have become invalid by subsequent development. The submission was that the appeal which was valid at the time of commencement could not become invalid even by the subsequent legislation since retrospective effect is given. It was submitted that the writ petition was maintainable when the same was filed. It was also submitted that the cause of action for filing the writ petition crystallised at a point of time when the respondent authority was, indisputably, subject to the writ jurisdiction. It was also submitted that the validity of a petition must be judged on the facts as they were at the time of its presentation and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. On behalf of the appellants, reliance was placed on the decision of the Supreme Court in the case of Rajahmundry Electric Supply Corporation Limited vs. A. Nageshwara Rao and others [AIR 1956 SC 213]. In the backdrop of the aforesaid facts, the Division Bench of the Calcutta High Court rejected the preliminary objection regarding maintainability of the appeal holding as under: Page 29 of 51 HC-NIC Page 29 of 51 Created On Sat Oct 22 06:48:16 IST 2016

4. It has been submitted on behalf of the respondent company that the said Jessop and Co. ceased to be a Government company or an authority within the meaning of Article 12 of the Constitution of India in view of privatisation of the said company. The learned Counsel of the respondent Jessop and Co. immediately after commencement of the hearing of the appeal raised the aforesaid preliminary objection regarding maintainability of the appeal on the ground that the said Jessop and Co. has ceased to be a Government company and therefore, not amenable to the writ jurisdiction.

5. Mr. L. K. Gupta, learned Senior Counsel of the respondent company submits that an appeal being a continuation of the writ proceeding, the appellants are not entitled to pursue the matter any longer in the present case as no writ can be issued against the present management of the Jessop and Co. Mr. Gupta further submits that in order to maintain a writ petition the petitioners have to show that they have locus standi . The said learned Counsel of the respondent company submits that a petitioner can have locus standi when he has a legal right which has been infringed or is threatened to be infringed and in absence thereof, a writ petition is not entertainable. Mr. Gupta also submits that on the date of filing the writ petition even if the writ petitioner had the locus standi but subsequently in course of the proceeding if the said legal right was extinguished then the said writ petitioners would not be entitled to maintain the proceeding any more to loss of locus standi .

6. It has also been submitted on behalf of the respondent company that the maintainability of a writ petition and further proceedings arising therefrom by way of appeal depends on the respondents since a writ petition is maintainable against a "State" or "other authority" mentioned in Article 12 of the Constitution. The learned Senior Counsel of the respondent company submitted before this Court that at the time of presentation of the writ petition, the respondent company was amendable to writ jurisdiction under Article 226 of the Constitution of India since it used to perform public or statutory duties. However, in course of the proceeding, according to the respondent company, there was cessation of status of the said Jessop and Co. due to privatisation/disinvestments through transfer of shares to private hands and therefore, the pending proceeding also ceases to be maintainable.

7. The appellants herein prayed for recomputation of their Voluntary Retirement Scheme benefits on the basis of the orders of the Government of India in relation to the revision of pay as mentioned in office memorandums dated 19th July, 1995, 29th January, 1999 and subsequent officer memorandum dated 8th December, 2000. Mr. Gupta, learned Senior Counsel of the respondent company submits that the present appeal against the Jessop and Co. can be maintained only if the aforesaid circulars are binding on the Jessop and Co. According to Mr. Page 30 of 51 HC-NIC Page 30 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Gupta, when Jessop and Co. was Public Sector Enterprise, the Government of India could dictate to it in financial matters as the said Government of India exercised deep and pervasive control financially, administratively and functionally over the said Jessop and Co. at that point of time. Mr. Gupta further submits that after privatisation of the Jessop and Co., those circulars cannot bind the said company. It has been specifically urged on behalf of the respondentcompany that the liability of the erstwhile Government company, if any, under the aforesaid circulars cannot be the liability of the present management. Mr. Gupta submits that there is no law which can transfer such liability.

8. Referring to the decision of this Hon'ble Court in the case of Subodh Ranjan Das v. Union of India and Ors. reported in 1990 (2) C. H. N. 278, Mr. Gupta submits that the claim made in the writ petition is not enforceable against the present Jessop and Co. Ltd. It has been submitted on behalf of the respondent company that the present management of Jessop took over charge on 2003 after transfer of shares and the validity of which was upheld by a Division Bench of this Hon'ble Court. The appellants/writ petitioners admittedly retired in the year 1998. The learned Counsel of the respondent company submits that there was never any employer employee relationship between the present management and the appellants and hence, the present management of the respondent company has no liability towards the appellants/writ petitioners. Mr. Gupta, learned Counsel of the respondent company submits that when the said respondent company was a Public Sector Enterprise could have at the highest a contingent liability depending on the future generation of funds out of its working as per Para (ii) of office memorandum dated 29th January, 1999. Mr. Gupta further submits that the Government of India had at the relevant time a control over the respondent company because of its share holdings although the Government of India was neither a part of the public sector enterprise nor the said public sector enterprise was a part of the Government of India. According to Mr. Gupta, Government of India cannot have any liability in view of the specific provisions as mentioned in Para (ii) of the said office memorandum dated 29th January, 1999.

9. On behalf of the respondent company it has been submitted that the question of legality of the transfer of shares by the Government of India in respect of the respondentJessop and Co. in favour of the private party was the subject matter of legal proceedings and the Division Bench of this Hon'ble court had held such transfer to be legal and proper. On behalf of the respondent company, learned Counsel Mr. Gupta relying on the decision of the Supreme Court in the case of Shri Baradakanta Mishra v. Shri Bhimsen Dixit reported in AIR 1972 SC 2466 submits that unless an order of stay in granted by the higher Court, existing judgment holds the field and continues to be a binding precedent until set aside by the higher Court. Page 31 of 51 HC-NIC Page 31 of 51 Created On Sat Oct 22 06:48:16 IST 2016

10. Mr. Saktinath Mukherjee, learned Senior Counsel of the appellants submits that the said judgment has not reached its finality as further proceeding therefrom is now pending in the Supreme Court. Mr. Mukherjee further submits that now it cannot be said that the respondent company is finally under the private management in view of the pendency of the proceedings before the Supreme Court regarding transfer of shares of the said company. Mr. Mukherjee referred to and relied on the decisions of this Hon'ble Court in the case of Satyanarayan Prasad v. Diana Engineering reported in 55 C W N 509 and in the case of Zodiac Investment v. Durga Investment Trading reported in 1988 (2) C L J 491 and submits that the appeal destroys the finality of the decision.

11. In the case of Satyanarayan Prasad (supra), this Hon'ble Court specifically held as hereunder : "A decision liable to appeal may be 'final' until the appeal is preferred. But once the appeal is filed the decision loses its character of 'finality' and what was once res judicata again becomes res sub judice, that is, a matter under judicial inquiry. The appeal destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the appellate Court, in other words, once an appeal is filed from a decree or order in a matter, it becomes a pending matter."

12. The relevant passage from the decision of the Zodiac Investment (supra) reported in 1988 (2) C L J 491 is set out hereunder : "Be that as it may, the observations of the Supreme Court in (15) Gojer Bros. (Pvt.) Ltd. v. Ratan Lal Singh (Shri)., AIR 1974 SC 1380 and also in the various earlier decisions referred to and relied on therein would go to show that the observations in the Division Bench decision of this Court in Satyanarayan Prasad (supra) extracted hereinbefore, require consideration. It has been pointed out in Gojer Brothers (supra), that once an appeal is filed against a decree, the appellate Court would has to confirm, modify or reverse the decree and that and in all these cases the operative decree would be the decree of the appellate Court, not only when it reverse or modifies the decree but even when it confirms it and the decree under appeal would lose its identity and it may be urged that these observations in Gojer Brothers (supra), go to lend considerable support to the observations of this Court in satyanarayan Prasad (supra), then on an appeal from a decree the matter covered and decided by the decree become "pending matters" and the decree shall obviously stand displaced by the appellate decree, in whichever way the appeal is eventually decided."

13. Mr. Mukherjee also referred to a recent decision of the Hon'ble Page 32 of 51 HC-NIC Page 32 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Supreme Court in the case of Union of India v. West Coal Paper Mills reported in (2004) 2 SCC 747 : (AIR 2004 SC 1596). In the aforesaid decision Supreme Court observed as hereunder: "14. ..............Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a Court or Tribunal. Once a special leave is granted and the appeal is admitted, the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the Court is entitled to go into both questions of fact as well as law. In such an event, the correctness of the judgment is in jeopardy."

14. Mr. Mukherjee submits that in the instant case since the appeal has been referred to a larger Bench of the Supreme Court, the Division Bench judgment of the Calcutta High Court is in jeopardy.

15. Considering the aforesaid decisions we are of the opinion that the Division Bench judgment of this Hon'ble Court in the matter of transfer of shares to the respondent Jessop and Co. cannot become final in view of pendency of the appeal in the Supreme Court from the said judgment of this Court.

16. Mr. Mukherjee further submits that the order of BIFR approving the scheme for disinvestments is also subject matter of appeal which is pending before AAIFR. The privatisation of Jessop under the scheme approved by the BIFR is also pending before AAIFR. Mr. Mukherjee also submits that there is one fundamental principle governing the procedural law. According to Mr. Mukherjee, the parties to litigation cannot affect the pending proceeding by their own unilateral action and cannot absolve themselves from liability in a pending litigation. Mr. Mukherjee referred to the principle underlying in Section 52 of the Transfer of Property Act dealing with the concept of lis pendens . In this connection Mr. Mukherjee referred to the following passage from Mulla's Transfer of Property Act, Ninth Edition : "These judgments were quoted and followed by the privy council in Faiyaz Hussain Khan v. Prag Narain (1907) 29 Allahabad 389, which is the leading case on the doctrine of lis pendens in India. In a Calcutta case, Mookherjee, J. speaking of the application of the doctrine of suits for specific performance of contracts to transfer immovable property, said that if, when the jurisdiction of the Court had once attached, it could be ousted by the transfer of the defendant's interest, there would be no end to litigation and justice would defeated."

17. Learned Senior Counsel of the appellants very strongly urged before Page 33 of 51 HC-NIC Page 33 of 51 Created On Sat Oct 22 06:48:16 IST 2016 this Court that the provisions of Order 22, Rule 10 of the Code of Civil Procedure permits the continuance of a pending proceeding as originally framed notwithstanding any assignment creation or devolution of any interest during the pendency of the proceeding.

18. Sir Asutosh Mookerjee in a celebrated judgment in Ray Charan Mandal v. Biswa Nath Mondal reported in 20 C L J 107 held: "The Rule was recognised in Radhey Koer v. Ajodhya Das that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. This is in accord with the observation of Lord Kings Down in Anundmoyee v. Sheeb Chunder that in appeal the question is whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered, and that no subsequent event or devolution of interest can affect that question, because to give effect to them, should justice require it, would be the office, not of any appeal but of some supplementary proceeding (at page 108)".

19. Mr. Saktinath Mukherjee also referred to Paragraph 406 from Story on Equity, 3rd Edition, Page 166, which is reproduced hereinbelow: "Ordinarily it is true that the judgment of a Court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of an action is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendente lite , nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation." (At page 166 at para 406).

20. It has also been submitted before this Court on behalf of the appellant that a proceeding which is maintainable on the date of institution does not become nonmaintainable because of change of law unless such change expressly makes it nonmaintainable and similarly a proceeding non maintainable on the date of its institution cannot become maintainable because of subsequent change of law unless the Statute clearly provides for such consequences.

21. Mr. Mukherjee submits that even before the BIFR said appellants ventilated their grievances and the BIFR granted leave to the appellants to Page 34 of 51 HC-NIC Page 34 of 51 Created On Sat Oct 22 06:48:16 IST 2016 seek relief at the appropriate forum. It has also been submitted on behalf of the appellants that the VRS Scheme was introduced at the instance of the Government of India and the said scheme was also financed by the Government of India. Mr. Mukherjee further submits that the appellants herein have been claiming relief from the Union of India and also from the respondent company which was undisputedly an agency of the said Union of India at least at the time of filing of the instant appeal. The learned Senior Counsel of the appellants submits that it is not open to the Union of India and also the respondent company to devise any scheme which will absolve them from the liability in a pending appeal. Mr. Mukherjee also submits that under the Voluntary Retirement Scheme, ex gratia amount has always been paid by the Government of India.

22. According to Mr. Mukherjee, the appellants hereinhave only claimed recalculation of the ex gratia payment on the basis of the revised pay scale which was implemented in the respondent Jessop and Co. w.e.f. 1st January, 1992. Mr. Mukherjee also submits that as per extant policy ex gratia payments are made to the voluntary retirees by the Government of India. It has been specifically submitted on behalf of the appellants that the Government of India, Department of Heavy Industries, time to time issued order extending various benefits to the voluntary retired officers of PSEs in connection with pay revision and the reference has been made in this regard to the office memorandum dated 8th December, 2000 issued by the Heavy Industries and Public Enterprises Department, Government of India wherein it has been categorically mentioned that ex gratia will recalculated on the basis of the revised pay scale and the difference would be paid as arrears of ex gratia even subsequent to voluntary separation. The learned Counsel of the appellants submits that the appellants herein are entitled to recalculation of ex gratia in 1992 revised scale and receive payment of difference money in terms of the aforesaid office memorandum dated 8th December, 2000 since the pay revision has already been sanctioned and implemented in respect of Jessop and Co. subsequent to the voluntary separation of the appellants herein. The learned Counsel of the appellants further submits that the appellants herein cannot be denied benefits of 1992 pay revision as the said appellants were very much in service at that time.

23. Mr. Dinesh Roy, learned Counsel representing the Union of India adopted the arguments advanced by Mr. Gupta on behalf of the respondentcompany.

24. Considering the rival contentions of the respective parties we are of the opinion that the issues relating to the entitlement of the appellants/writ petitioners to enjoy the fitment benefits and ex gratia and/or other corresponding terminal benefits as well as arrears of pay on the basis of revised pay scale w. e. f. 1st January, 1992 or liability of the present management of the respondent company for payment of any amount to Page 35 of 51 HC-NIC Page 35 of 51 Created On Sat Oct 22 06:48:16 IST 2016 the said appellants towards the arrear dues, if any, are not required to be decided at this stage for the purpose of deciding the preliminary objection regarding maintainability of this appeal. It is not in dispute that on the date the writ application was moved i.e. in August, 2001, as well as on the date the writ petition was dismissed by the learned single Judge i.e. on April 9, 2002, and on the date of filing of the instant, appeal, Jessop and Company undisputedly was a public sector undertaking. Furthermore, it is also on record that the Jessop and Co. became Public Sector undertaking consequent upon its nationalisation by an act of Parliament and its privatisation was brought about by disinvestments in shares on the basis of an executive decision. The propriety and legality of the aforesaid privatisation is the subject matter of the proceedings now pending before the larger Bench of the Hon'ble Supreme Court.

25. The appeal which was valid at the time of commencement could not become invalid even by subsequent legislation unless retrospective effect is given. The provisions of Order 22, Rule 10 of the Code of Civil Procedure are very much applicable in this regard. The aforesaid provisions of Order 22, Rule 10 of Code of Civil Procedure are set out hereunder : "O. 22, R. 10. Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of subrule (1)".

26. We, therefore, do not understand how the appellant can be non suited during pendency of the present appeal. This Court in the case of Zodiac Investment v. Durga Investment Trading and Co. and Anr. reported in 1988 (2) C L J 491 held : "13. Mr. Mukherjee, the learned Counsel appearing for the appellants, has very strongly urged that while a decree for against a tenant would divest him of his status as a tenant, such a decree must be a final one and that once an appeal is filed and is pending against such decree, the decree would be deprived of its final character during the pendency of the appeal and cannot, therefore, during the pendency of the appeal, made the tenant cease to be a tenant. Mr. Mukherjee has placed strongest reliance on the following observations in the Division Bench decision of this Court in (10) Satyanarayan Prasad v. Diana Engineering, 55 CWN 509 at 514 : 'A decision liable to appeal may be 'final' until the appeal is Page 36 of 51 HC-NIC Page 36 of 51 Created On Sat Oct 22 06:48:16 IST 2016 preferred. But once the appeal is filed the decision loses it character of 'finality' and what was once res judicata again becomes res sub judice, that is, a matter under judicial inquiry. The appeal destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the appellate Court in other words, once an appeal is filed from a decree or order in a matter, it becomes a pending matter."

27. In the present case, we find that the status of the respondent company was a Public Sector Enterprise at least on the date of filing of the instant appeal and therefore, the said appeal cannot become invalid due to the subsequent decision of the respondent Government of India on account of privatization of the company by transferring its shares in favour of private individuals. The respondent Government of India or the respondent company by its subsequent action cannot render a pending appeal infructuous.

28. In the case Rai Charan Mandal (supra), Sir Asutosh Mookerjee, speaking for the Division Bench specifically held : "The successor in interest may, if he chooses, obtain leave of the Court under Order 22, Rule 10; but if he does not do so, the original plaintiffs are entitled to continue the suit, and their successor will be bound by the result of the litigation."

29. It has been held by the Supreme Court in the case of Kapila Hingorani v. State Of Bihar reported in (2005) 2 S C C 262 : (AIR 2005 SC 980) that the State has an additional duty to see that the rights of the employees of the Government companies are not infringed. The relevant paragraph of the aforesaid decision is set out hereunder : "22. This Court further relying upon the doctrine of "lifting the corporate veil" observed : "30. The Government Companies/public sector undertakings being 'States' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the Government Companies; in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed ...." Page 37 of 51 HC-NIC Page 37 of 51 Created On Sat Oct 22 06:48:16 IST 2016

30. Before disinvestment of shares, Jessop and Co. was undisputedly, a Government Company and the Government of India was, therefore, under an obligation to see that the rights of the employees of the said Government company are not infringed in any manner. The Government of India, however, allowed disinvestment of shares during the pendency of the appeal and such transfer of shares in favour of the private individual is the subject matter of challenge before the Supreme Court. Since the Government of India during the pendency of the appeal permitted the transfer of shares of the respondent company, it cannot avoid its responsibility to protect the rights of the employees to enjoy the benefits on the basis of the earlier circulars or orders issued by the competent authority of the said Government of India.

31. In the case of Rajahmundry Electric Supplycorporation Ltd. v. 1. A. Nageshwara Rao. reported in AIR 1956 SC 213, Hon'ble Supreme Court rejected the contention that due to events subsequent to filing of the petition, the application was no longer maintainable with the following words : "................. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation..........."

32. It is nobody's case that the writ petition was not maintainable when it was filed. The cause of action for filing the writ petition crystallized at a point of time when the respondent authority was, admittedly, subject to the writ jurisdiction. The said cause of action confers a vested right to the writ petitioners to have their grievances adjudicated in a writ proceeding. No one can contend that the writ petitioners have brought the present situation by their conduct. The change of circumstances is not attributable to the petitioners.

33. For the aforesaid reasons, we are of the opinion that the instant appeal is very much maintainable and the preliminary objection raised on behalf of the respondent company cannot be sustained in the eye of law. Therefore, the said preliminary objection regarding maintainability of this appeal as raised by the respondent company is rejected.

34. Let the appeal be now listed for further hearing in order to adjudicate the other issues raised in the appeal on merits.

35. Let urgent certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking. Thus, the Division Bench of the Calcutta High Court, while Page 38 of 51 HC-NIC Page 38 of 51 Created On Sat Oct 22 06:48:16 IST 2016 holding that the appeal was maintainable, took notice of the following aspects: (1) On the date of the filing of the writ application as well as on the date when the writ application came to be rejected by the learned Single Judge and also on the date of the filing of the appeal, the Jessop and Company, indisputably, was a public sector undertaking. (2) The Jessop and Company became a public sector undertaking consequent upon its nationalisation by an act of Parliament and its privatisation was brought about by the disinvestments in shares on the basis of an executive decision. (3) The propriety and legality of the aforesaid privatisation was a subject matter of the proceedings pending before the Larger Bench of the Supreme Court. (4) The status of the respondent company was a public sector enterprise at least on the date of filing of the appeal. (5) The provisions of Order 22 Rule 10 of the Code of Civil Procedure would be applicable. The cause of action for filing the writ application crystallised at a point of time when the respondent authority was, indisputably, subject to the writ jurisdiction. (6) The said cause of action conferred a vested right to the writ applicants to have their grievances adjudicated in a writ proceeding. Page 39 of 51 HC-NIC Page 39 of 51 Created On Sat Oct 22 06:48:16 IST 2016 (7) The writ applicants had not brought about the situation by their own conduct and therefore, the change of circumstances could not be attributed to the writ applicants. There is no doubt that if the dictum, as explained by the Division Bench of the Calcutta High Court is applied in the case in hand, then probably, the writ application could be said to be maintainable. However, there are few distinguishing features, which, in my view, are important as they go to the root of the matter. First, in the case before the Calcutta High Court even at the time when the writ application was rejected, the company was a public sector undertaking; Secondly, even when the appeal was filed, the same was a public sector undertaking; and thirdly and most importantly, the issue as regards the propriety and legality of the privatisation was pending before the Larger Bench of the Supreme Court.

41 I also take notice of the fact that the Division Bench decision of the Calcutta High Court was carried further in appeal before the Supreme Court. The Special Leave to Appeal (Civil) No.15252 of 2007 came to be dismissed vide order dated 7th January 2008.

42 In the aforesaid context, I may state that it is a settled law that an order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Supreme Court is not inclined to exercise its discretion so as to allow the appeal being filed. Page 40 of 51 HC-NIC Page 40 of 51 Created On Sat Oct 22 06:48:16 IST 2016

43 In the case in hand, before the writ application could be taken up for final hearing, the status of I.P.C.L. changed. The I.P.C.L. once a public sector enterprise is no longer in existence, the same has been taken over by the Reliance Industries Limited. At no point of time, the legality and validity of the amalgamation of the I.P.C.L. with the Reliance Industries Limited arose before any Court. In such circumstances, I find it extremely difficult to hold that this writ application is maintainable and that too by applying the provisions of Order 22 Rule 10 of the Code of Civil Procedure. Ultimately, the whole issue boils down as to how a writ can be issued against a private entity.

44 At this stage, let me look into the decision of the Supreme Court in the case of Beg Raj Singh vs. State of U.P. and others [JT 2002 (10) SC 417]. The observations of the Supreme Court, as contained in para 6, are relevant. The same are elicited as under: ...The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events,

i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasijudicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him... Page 41 of 51 HC-NIC Page 41 of 51 Created On Sat Oct 22 06:48:16 IST 2016

45 In Rajesh D. Darbar and others vs. Narsingrao Krishnaji Kulkarni and others [(2003) 7 SCC 219], the Supreme Court held as under: "The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the court, even in appeal, can take note of such supervening facts with fundamental impact. This Court's judgment in Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (see V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252)."

46 In Seshambal (dead) through legal heirs vs. M/s. Chelur Corporation, Chelur Building and others [AIR 2010 SC 1521(1)], the Supreme Court, while dealing with an appeal arising under the Kerala Buildings (Lease and Rent Control) Act (2 of 1965), held as under: Page 42 of 51 HC-NIC Page 42 of 51 Created On Sat Oct 22 06:48:16 IST 2016 ..While it is true that the right to relief must be judged by reference to the date the suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted. That proposition of law is, in our view, fairly settled by the decisions of this Court in Pasupuleti Venkateswarlu case (AIR 1975 SC 1409) (supra). Krishna Iyer J. (as his Lordship then was) has in his concurring judgment lucidly summed up legal position in the following words : "....................If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed............."

47 To the same effect is the decision of the Supreme Court in Om Prakash Gupta vs. Ranbhir B. Goyal [(AIR 2002 SC 665 : 2002 AIR SCW 278] where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the Court has power to mould the relief in case the following three conditions are satisfied : Page 43 of 51 HC-NIC Page 43 of 51 Created On Sat Oct 22 06:48:16 IST 2016 "........(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise......"

48 Even if the aforesaid dictum of the Supreme Court is applied in the case in hand, it is difficult for this Court to take the view that as the writ applicant is not responsible for the change of circumstances and the writ application was maintainable at the time when it was filed, a writ can be issued to a private entity for the purpose of enforcing the fundamental rights of the writ applicant alleged to have been infringed by a company, a public sector undertaking at a point of time and now no longer in existence. It is also not legally permissible to take the view that since the I.P.C.L. was a Government of India undertaking, a writ could be issued against the Union of India. An employee of a public sector undertaking by itself will not be a civil servant or an employee of the Union of India. At best, he could be termed as an employee of a company owned by the Government. Therefore, even ignoring the

I.P.C.L., no liability could be fastened even on the Government of India at this stage.

49 I am not impressed by the submission of Mr. Bhatt that the writ applicant has no other alternative remedy, except invoking the writ jurisdiction of this Court. According to Mr. Bhatt, since the original writ applicant i.e. the employee has passed away, it will be legally impermissible for the legal heirs to file a civil suit for declaration for the purpose of challenging the order of dismissal from service. The legal heirs on record can definitely file a civil suit for declaration that the departmental inquiry was not conducted in a fair and transparent Page 44 of 51 HC-NIC Page 44 of 51 Created On Sat Oct 22 06:48:16 IST 2016 manner and the consequential order of dismissal is illegal. Section 14 of the Limitation Act would also save the situation. Section 14 of the Limitation Act itself is meant for the suits.

50 The jurisdiction of a civil court is governed by Section 9 of the Code of Civil Procedure, which reads as under : "9. Courts to try all civil suits unless barred : The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." The jurisdiction of the Civil Court in terms of the aforementioned provision is a plenary one. The provision relating to bar to entertain a suit must therefore be laid down by a statute either expressly or by necessary implication. An employee charged with grave acts of misconduct must be held to be entitled to a fair hearing in the departmental proceeding. The common law principles of natural justice must also be complied with. Rules laid down in the statutory rules indisputably should be followed. [See : Rajasthan State Road Transport Corporation & another vs. Bal Mukund Bairwa, AIR 2009 (Supp) 1857]

51 In Narinder Mohan Arya vs. United India Insurance Co. Ltd. and Ors. [(2006) 4 SCC 713], the Supreme Court held : "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following : (1) the enquiry officer is not permitted to Page 45 of 51 HC-NIC Page 45 of 51 Created On Sat Oct 22 06:48:16 IST 2016 collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709]. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State Of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State Bank of India and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State Of Rajasthan. (1986) 3 SCC 454]. (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subjectmatter of the charges is wholly illegal. [See Director (Inspection and Quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v. Commissioner of Police and Ors. (1999) 2 SCC 10]." {See also Roop Singh Negi vs. Punjab National Bank [2009 (1) SCALE 284]} Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, the civil courts can try all suits, unless barred by statute, either expressly or by necessary implication.

52 The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said Page 46 of 51 HC-NIC Page 46 of 51 Created On Sat Oct 22 06:48:16 IST 2016 purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction. [See : Bal Mukund Bairwa (supra)]

53 In Dhulabai vs. State of M. P., [(1968) 3 SCR 662], the Supreme Court held as under : "(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Page 47 of 51 HC-NIC Page 47 of 51 Created On Sat Oct 22 06:48:16 IST 2016 Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lie. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." {See also Church of North India vs. Lavajibhai Ratanjibhai and Ors. [(2005) 10 SCC 760]; United India Insurance Co.Ltd. vs. Ajay Sinha and Anr. [2008 (8) SCALE 509]}

54 A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

55 If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary Page 48 of 51 HC-NIC Page 48 of 51 Created On Sat Oct 22 06:48:16 IST 2016 jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in my considered opinion, it would not be correct even to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has been considered by the Supreme Court in Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case. If the infringement of the Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction. Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on the personal volition of an employer, is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status, i.e., his conditions of service are governed by the Rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed Page 49 of 51 HC-NIC Page 49 of 51 Created On Sat Oct 22 06:48:16 IST 2016 by statute or statutory Regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof. [Vide Bal Mukund (supra)]

56 In Praga Tools Corpn. vs. C.A. Imanual [(1969) 1 SCC 585], the Supreme Court held : "6. ... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. 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 mandamus can issue, for instance, to an official of 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 authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities." [See also Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh (supra)]

57 In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such a situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, the Court may hasten to add that if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no Page 50 of 51 HC-NIC Page 50 of 51 Created On Sat Oct 22 06:48:16 IST 2016 procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, sub para (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & others [(1976) 1 SCC 496] shall prevail. [Vide Bal Mukund (supra)]

58 For all the foregoing reasons, the preliminary objection as regards the maintainability of this writ application is upheld. I hold that this writ application is not maintainable against the Reliance Industries Limited.

59 This writ application is disposed of with liberty to the legal heirs of the original writ applicant to approach any other forum for the redressal of their grievance if so advised. The time spent by the writ applicant in prosecuting the present proceeding shall be taken into consideration for the purpose of limitation in case the writ applicant choose any such remedy where the question of limitation would be relevant. (J.B.PARDIWALA, J.) chandresh Page 51 of 51 HC-NIC Page 51 of 51 Created On Sat Oct 22 06:48:16 IST 2016