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IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 21.12.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.26606 of 2001 and WPMP Nos.39341/01 and 196/12 & WVMP No.261 of 2002 E.Manikandan ... Petitioner vs. 1. The Management of India Meters Ltd., represented by its Managing Director, No.12 Poes Road, Teynampet, Chennai 600 018. 2. The Manager (Personnel & Administration), India Meters Ltd., (Auto Component Division) Plot No.1, T.V.S. Industrial Estate Harita, Hosur 635 109. 3. The Deputy Chief Inspector of Factories, Fairlands, Salem 636 016. ... Respondents Writ Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. For Appellant : Mr.V.Prakash, Sr. Counsel for Ms.G.Ramapriya For R1 & R2 : Mr.L.Rajasekar, for Mr.R.Thirunvaukarasu J U D G M E N T
The present writ petition has been filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the respondents relating to the order of the 2nd respondent dated 06.09.2001 placing the petitioner under suspension, quash the same and direct the respondents to accord full wages and all consequential and attendant benefits to the petitioner for the period of his illegal suspension and to confer permanency to him.
2. Mr.V.Prakash, learned Senior Counsel appearing for the petitioner/employee, by highlighting the factual scenario, would submit that the petitioner joined the service on 24.03.1998 in the respondent/company, which is engaged in the manufacture of Main Frames and Silencers for TVS Motorcycles at its Production Unit located in Hosur, as a Trainee and that though no written appointment order was issued at the time of joining, he was placed on probation with effect from 24.03.1999 for a period of one year. In the Unit of the respondent started during 1996-97, about 180 employees were working. The petitioner is an active member of the Dharmapuri District Periyar Dravida Kazhakam and, in the respondents/Factory, they did not have any genuine trade union representation. While so, one Ilavarasan sent a letter on 29.11.2000, to the Deputy Chief Inspector of Factories, Hosur, seeking permanency for the 180 workers engaged in the Manufacturing Unit of the respondents. Subsequently, between 05.01.2001 and 10.01.2001, permanency was conferred on 60 employees, of whom, 10 were juniors to the petitioner. According to the learned senior counsel, since the petitioner and 19 other workmen attended the hoisting of the Flag of the Kazhakam at TVS Main Road in December, 2000, actuated by malice, the respondent/Management, despite the fact that those workmen had already completed their period of probation, issued orders on 02.03.2001, extending their probation upto 30.06.2001. While so, the petitioner was issued with a letter, dated 19.02.2001, containing the allegation that he absented himself from duty from 10.02.2001 without prior permission/intimation. Immediately, the petitioner gave a reply on 20.02.2001 explaining that he had to take leave as his father was very sick and further, he had informed the Management about the situation through a co-employee. Apart from that, the petitioner had also given a leave application, expressing his regret for not having sought permission in writing.
It is highlighted by the learned Senior Counsel that though the petitioner had completed his extended period of probation on 30.06.2001, the Management did not confirm him in service and hence, he moved an application under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (in short 'Act'), before the Deputy Chief Inspector of Factories, Salem, seeking permanency on the basis that he fulfilled the statutory requirement of completion of continuous service of 480 days in 24 calendar months. Very unfortunately, by the impugned order, the petitioner was suspended only because of the reason that he had moved the Authority under the Act seeking permanency.
According to the learned Senior Counsel, the only intention behind passing the impugned order is that the management wants to send a clear warning to the other similar workmen to face the same consequence if they also insists upon conferment of permanency. In fact, the same modus operandi was adopted in the case of two other co-workers who sought for permanency. During the pendency of their applications for permanency, the Management victimized them and terminated their services on 06.09.2001 so as to make their applications infructuous. Learned senior counsel added that this type of conduct and attitude on the part of the Management clearly depicts that a grim and monstrous situation was created by them against the workmen, who sought for enforcement of their right of permanency in their employment.
In order to sustain his argument regarding maintainability of the writ petition, learned counsel referred to a decision of the Apex Court in UP State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey (1999 (1) SCC 741) and Voltas Volkart case (2002 (1) CTC 184) and added that the relief sought for may be granted on the sole ground that the order of suspension passed by the management against the petitioner is arbitrary and abuse of the disciplinary powers vested in the authority.
To accept his prayer for issuance of a writ against the private Management, learned Senior Counsel placed reliance upon a ruling of the Apex Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union (1976 (2) SCC 82) and highlighted the proposition laid down therein to the effect that the expansive and extraordinary power of the High Court under Article 226 of the Constitution of India 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 and even one for which another remedy may exist; the amendment to Article 226 inserting 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 authorise its free exercise like a bull in a china shop; and the mentor of law is justice and a potent drug should be judiciously administered.
Citing the case law reported in 2005 (6) SCC 657 (Binny Ltd. v. Sadasivan), learned Senior Counsel highlighted the ratio that a writ of mandamus or the remedy under Article 226 pre-eminently being a public law remedy and available against a person or body performing a public law function, a writ can also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution of India. According to him, in the present case, the impugned suspension order came to be passed as a punitive measure for the petitioner's moving the authority under the Act seeking permanency on his probation being extended without any rhyme or reason and unjust rejection of his repeated requests. In other words, when it is the bounden duty of the Management to confer permanent status to the employee subsequent to the completion of continuous service for the stipulated period by the employee, evasive attitude only reflects that the Management has committed a serious lapse which undoubtedly warrants interference by this Court by exercising its wide powers under Article 226 of the Constitution of India to grant the relief and to undo the effect of the suspension order passed with ulterior motives to punish the petitioner in moving the authority under the Act to get his grievance redressed.
Learned Senior Counsel further submitted not to accept the version of the respondents that the proceedings were initiated against the petitioner only on the basis of the the complaint given by a co-employee against the petitioner stating that the petitioner had abused and intimidated him for refusing to join the Union, for, the fact remains that the petitioner was not issued with any charge sheet or communication relating to the enquiry with reference to such alleged incident. So submitting, ultimately, he pleaded for grant of the relief sought for by allowing the writ petition.
3. Per contra, learned counsel for the respondents/management would submit that the petitioner was appointed as a Workman in the Company through a Communication dated 15.10.1999 wherein it was mentioned that he would be placed on probation till further communication is issued regarding permanency. For continuous unauthorized absence on the part of the petitioner, a show cause notice, dated 19.02.2001 was issued to him and, in the reply, the petitioner while accepting the charges levelled against him, tendered apology. Only in that background, the Management, after full assessment of his performance, extended his period of probation till 30.06.2001. While so, on 05.09.2001, one of the co-employees sent a complaint to the Management stating that the respondent abused and intimidated him for his refusal to join the Union proposed to be formed by the respondent. After investigating into the allegation, the Management suspended the petitioner on 06.09.2001 and charge sheet dated 10.10.2001 was also sent to him. The petitioner did not choose to furnish any reply and through Communication dated 10.10.2001, a domestic enquiry was ordered to be held on 17.10.2001 and the petitioner did not attend the said enquiry. About four months thereafter, when the Management was about to further proceed with the enquiry already initiated against the petitioner, the petitioner, sensing the situation, smartly approached this Court by way of the present writ petition and also obtained an order of injunction during the first week of January 2002. Learned counsel highlighted the point that when the impugned order passed not being in violation of any statutory provision or Rule and the Management/Private Employer, with whom the petitioner has only contractual relationship, passed the said order as a disciplinary measure having regard to smooth functioning of the Unit engaged in manufacture of Frames and Silencers for TVS Motorcycles in Hosur, legally speaking, the present Writ Petition as against such private Employer, which does not fall under Article 12 of the Constitution of India, cannot at all be maintained so as to invoke the writ jurisdiction under Article 226 for enforcement of a contract of employment between private parties.
He made reference to a judgment of the Apex Court cited by the counsel for the petitioner - reported in 2001 (1) SCC 298 (VST Industries Ltd. v. VST Industries Workers' Union), wherein, it was observed thus:-
" 8. The High Court has relied very strongly on the decision of a learned Single Judge in T. Gattaiahs case 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 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 Muktas case 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 discharges 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."
According to the learned counsel, having regard to the above observation, even if it is considered that a part of the service conditions is violated, the same can never be a reason to entertain the writ petition.
4. I find considerable force in the submission made by the learned counsel for the respondents. In fact, an identical case was dealt with by myself while deciding W.P. No.35016 of 2002 by Order dated 05.09.2012, wherein, the learned counsel for the petitioners therein referred to judgment of the Apex Court in Andi Mukta S.M.V.S.S.J.M.S. Trust v. V.R.Rudani (1989 (2) SCC 691) to highlight the position that the law relating to mandamus has made the most spectacular advance and added that, therefore, it is not legally tenable for the respondents to say that prerogative writ of mandamus is confined only to public authority to compel performance of public duty. It was the grievance of the petitioners in that case that, in the previous cases wherein decision was made against the workmen regarding maintainability, was because of the reason that Andi Mukta's case was not brought to the notice of the Benches that dealt with the matters and therefore, for the lapse on the part of the court in not being aware of the decision in Andi Mukta's case, the petitioners cannot be penalised. Thus, insisting upon this Court to go in line with Andi Mukta, he had sought for issuance of a writ in the said case which was similar on legal issue to that of the present case. It would be of much relevance to quote below the observations made therein, " It is true that the order passed by a learned single Judge of this Court in W.P. No.6325 of 2004, judgment rendered by a Division Bench in W.A. No.416 of 1998 and the decision rendered in Subbans case do not mention about Andi Mukta. But, essentially it must be pointed out here that exactly what the ratio laid down in Andi Mukta was already outlined by the Honble Apex Court in Rohtas Industries Limited and another v. Rohtas Industries Staff Union and others (Manu/SC/0354/1975) and that what was now argued by the learned counsel for the petitioners by referring to Andi Mukta for issuance of a writ even against a private person in the given set of circumstances was also the same limb of argument before this Court in Subbans case by referring to the Apex Court's decision in Rohtas Industries. In fact, this Court in Subban's case recorded the said submission thus, " 6. Learned counsel appearing for the petitioner has relied upon a decision of the Supreme Court reported in 1976 (I) LLJ 274 (ROHTAS INDUSTRIES LIMITED AND ANOTHER v. ROHTAS INDUSTRIES STAFF UNION AND OTHERS) in support of his contention that a writ would be maintainable even against a person depending upon the facts and circumstances of a particular case. The observation in the aforesaid Supreme Court decision is to the following effect:-
"10. The expensive and extraordinary power of the High Courts under Article 226 is wide 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 in 1963 inserting Article 22 6(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. and answered clearly in the following terms, 11. In the present case, the acceptance (even assuming that it was illegal acceptance) for voluntary retirement of a particular employee cannot be characterized as leading to such a monstrosity so as to exercise power under Article 226 against a private organisation, which is clearly beyond the ordinary purview of Article 226. Even though in many cases it has been held that writ of Mandamus would be maintainable even against a private person, such cases relate to question of enforcement of public duty.
12. Having regard to all these aspects, I think it is a fit case where a writ can no longer be issued in view of the changed circumstances, namely privatisation of the respondent. Therefore, I follow the course adopted in the similar Writ Petition No.14425 of 1995 dated 19.7.2002 and observe that the writ petition is no longer maintainable. The writ petition is accordingly disposed of as not maintainable leaving it open to the petitioner to workout his remedy before the appropriate forum. The analysis made by this Court as highlighted above would succinctly clarify the ambiguity of the learned counsel for the petitioner, for, the ratio laid down in Andi Mukta was also the same ratio in Rohta Industries' case and such ratio was well discussed by this Court and by stating that it cannot be fitted to the identical cases as the one on hand, similar contention was straightaway rejected and hence, I am of the view that the petitioners cannot now canvass that the order passed in W.P. No.6325 of 2004 following Subban's case, decision in W.A. No.416 of 1998 and orders passed in a batch of cases in W.P. Nos.29186 of 2003 etc., have no relevance to be followed.
11. At any rate, the petitioner is not justified in saying that this court, in its earlier orders, committed a mistake as the ratio laid down in Andi Mukta was not taken note of. As I pointed out already, though Andi Mukta was neither referred to nor brought to the notice of this Court, very same ratio laid down earlier was very well taken note of by this Court and it was clearly held that these type of cases are not the ones to be categorized as those involving monstrous situation so as to largely and freely distend the scope of writs to a private body. Therefore, I hardly find any reason or logic to act on the submission made by the learned counsel for the petitioner citing Andi Mukta case.
12. Even otherwise, the decision in Andi Mukta itself clearly spells out two exceptions to be borne in mind while writ courts dealing with the cases relating to private bodies. It would be of much relevance to quote below the exact wordings from para No.16 of the decision, 16. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. Testing the present case even in the light of the aforesaid criterion, it could be seen that the two traits/exceptions viz., (i) the rights are purely of a private character and (ii) the company is purely a private body, are apparently present here. Thus, even if the decision cited by the learned counsel for the petitioners is applied, his case will have to be dismissed in threshold on the ground that no writ would lie against the first respondent, a private entity. To visualize the consequences arising from readily issuance of mandamus in such cases, it is very apt here to quote below the following observation of the Apex Corot made in Rohtas Industries case, " 10. .. 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 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.
13. Since it is now made clear that in the earlier decisions of this Court similar ratio as laid down in Andi Mukta was clearly spelt out and exhaustively dealt with, thereby, there being no room to find fault with those decisions and that the present case is also the one deserves to be treated in the same line as the one in W.P. No.6325 of 2004, by rejecting the submission of the learned counsel as wholly untenable, I hold that the Writ Petition is liable to be rejected on the ground of maintainability. It follows that there would be no useful purpose in answering the other submissions of the learned counsel made on merits."
In the light of the above earlier decision rendered by this Court, if one looks at the present case, both the two aspects viz., (a) the rights are exclusively of a private nature and (b) the Employer is purely a private body, are present coupled with the fact that there is no element of public function seen here; therefore, in my considered opinion, no writ would lie against the private entity like the petitioner in the given set of facts which also do not suggest eruption of any grim or monstrous situation to specially distend the scope of the writ jurisdiction.
Thus, I do not find any ground or reason to take a view other than the one I took in the aforementioned earlier decision of mine; hence, the writ petition fails and the same is dismissed as devoid of any merit. Consequently, the connected miscellaneous petitions are closed.
21.12.2012.
Index : yes / no.
Internet : yes / no.
JI.
To The Deputy Chief Inspector of Factories, Fairlands, Salem 636 016.
T. RAJA, J.
Pre Delivery Judt.
in W.P. No.26606 of 2001 21.12.2012.