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TMI Blog2013 (3) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... hts 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. Writ Petition is liable to be rejected on the ground of maintainability. - Writ Petition No.35016 of 2002 - - - Dated:- 5-9-2012 - T. Raja,J. For Petitioners : Mr.N.G.R.Prasad, for M/s.Row Reddy. For R-1 : Mr.Sanjay Mohan, for M/s.S.Ramasubramaniam Associates For R-2to R4 : Mr.M.Gopikrishnan Central Government Counsel. ORDER The petitioners herein, who were employed with the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent wage revision. 4. Learned counsel for the petitioners states that the first respondent failed to see that basic pay and D.A. were revised from 01.01.1997 and made applicable to persons like petitioners, therefore, denial of the difference on the VRS amount based on the revised scale of basic pay and D.A. is arbitrary and violation of Article 14 of the Constitution of India; that when, by Memorandum dated 08.12.2000 on the subject of VRS, R4 clarified that exgratia will be recalculated on the basis of revised pay scale and difference paid, the action of the 1st respondent in denying the legitimate claim is superfluous and unjustifiable; that, in respect of employees who offered to go on VRS along with the petitioners as per the Circular dated 29.12.1998, the first respondent vide Circular dated 24.12.1999 stated that their VRS will be recalculated on the basis of revised pay, but, different treatment was given to the same category of employees merely because some were relieved earlier and others at later point of time; and that, at the time of disinvestment dated 16.10.2001, the Government of India under the Memorandum of Understanding had given the first respondent the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the change in share holding pattern, the company as on the date of filing of the writ petition during 2002 was neither a Government of India Company nor functioning under the Government of India. In other words, it was no longer a State or an Establishment carried on by or under the authority of Central Government. Therefore, a writ against such private body is not maintainable in law. 7. Learned counsel appearing for R-1, by referring to the detailed counter affidavit filed by the Company, pointed out that the Government of India framed a VR Scheme on 05.10.1988 to reduce the manpower cost and improve the productivity in all public sector undertakings. The first respondent implemented the Scheme from 1994 and from the inception of the scheme, 504 employees were relieved from the services of the company. The first respondent had implemented a revision in wage structure during the year 1995 with retrospective effect from 01.01.1992 and another revision had also come into effect during 2000-2001 with retrospective effect from 01.01.1997. Consequent to such wage revision, employees who left the services under VR Scheme, were given additional emoluments towards difference in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said decision was also followed in a batch of cases by K.Chandru, J in W.P.No.29186 of 2003 by order dated 22.11.2007, wherein liberty was given to the petitioners therein to workout their remedy in the manner known to law. According to the learned counsels, when the identical writ petition was decided against the employees not only by the aforesaid order of this Court but also by such similar orders in other matters as referred to therein, any endeavor by this court to consider the claim of the petitioners would only be a futile exercise and so submitting, they prayed for dismissal of the writ petition on the sole ground of maintainability itself. 9. I have carefully considered the rival submissions advanced on either side. Though the learned counsel for the petitioners at the first instance advanced his arguments on the merits of the matter, while making submissions on the central point of maintainability, and the applicability of the earlier order of this court in W.P. No.6325 of 2004 as well as the other earlier orders including the one passed by the Division Bench following Subban's case as referred to therein, he stated that Andi Muktas case (cited supra) was not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswered 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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