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TMI Blog2013 (4) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants (writ petitioners in the High Court) Jatya Pal Singh Ors. vs. Union of India Ors. in C.A.No.2147 of 2010. Proceedings in the Delhi High Court :- 4. Ten writ petitions were filed by the former employees of the Videsh Sanchar Nigam Limited (VSNL). The common question of law raised in all the appeals relates to the very maintainability of the writ petitions. VSNL had raised a preliminary objection that a writ petition would not be maintainable against it as it is neither a State within the meaning of Article 12 of the Constitution of India nor is it performing any public function. The learned Single Judge accepted the aforesaid preliminary objection and dismissed the writ petitions by judgment and order dated 29th August, 2011. Letters Patent Appeal No.924 of 2011 challenging the aforesaid order was dismissed by the Division Bench on 14th November, 2011. LPA Nos. 930 of 2011 and 931 of 2011 were dismissed by the common order dated 15th November, 2011. 4A. Only two of the original writ appellants have approached this Court in the civil appeals against the judgment of the learned Single Judge and the Division Bench of the Delhi High Court by way of civil appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees also were to be treated as though on the strength of OCS as on 31st March, 1986 till their cases were finalized by the VSNL. Those who do not opt for absorption will be treated as on deputation on foreign service with the Corporation for a period of 2 years without deputation allowance. The Corporation (VSNL) would finalise the terms and conditions for employment in the Corporation within a period of 12 months or on any specified date as may be agreed upon by the Government. It was provided that the employees will be asked to exercise their option for being absorbed in the company or otherwise within the stipulated period. The date of induction of the employees in the Corporation will be the date from which they have exercised the option to be absorbed in the Company with the approval of the competent authority. The notification also provided that pensionary and other retirement benefits to the employees on their absorption in the Corporation will be determined in accordance with the Department of Pensions and Pensioners Welfare O.M. No.4(8)-85-P PW dated 13th January, 1986 and as amended from time to time. 11. Thereafter on 11th December, 1989, VSNL issued STAFF NOTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1.85% in favour of its employees after following due process in accordance with its disinvestment policy. This brought the share holding of the Government of India to 26.12 %. Tata Group also made a public offer for acquiring a further 20% of the share capital of the VSNL, from the public in terms of SEBI (Substantial Acquisition of Share and Takeover) Regulations 1997. Consequently, the total holding of the Tata Group in VSNL increased to 44.99 % of the paid up share capital in 2002. Presently, Tata Group holdings in VSNL is about 50.11%. 13. As per the share holding agreement and share purchase agreement, the Government of India mandated the Tata Group to ensure that none of the employees should be retrenched for a period of one year. Clause 5.13 of the aforesaid agreement was as under :- 5.13 Employees. (a) Notwithstanding anything to the contrary in this Agreement, the Strategic Partner shall not cause the Company to retrench any of the employees of the Company for a period of 1 (one) year from the closing other than any dismissal or termination of employees of the company from their employment in accordance with the applicable staff regulations and standing orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a Tata Group Company was changed to Tata Communications Limited . Ten writ petitions were filed by the employees before the Delhi High Court and 2 writ petitions were filed before the Bombay High Court challenging the orders of termination. On 29th August, 2011, learned Single Judge of the Delhi High Court vide common order dismissed the 10 writ petitions, as not maintainable against TCL, the reconstituted entity of VSNL after disinvestment. The aforesaid order was challenged by four of the writ appellants in LPA which was dismissed by separate orders on 14th November, 2011, 15th November, 2011 and 17th February, 2012. Out of the said four persons Ram Prakash and Vijay Thakur have filed Civil Appeal No.5740 of 2012 and Civil Appeal No. 425 of 2012 before this Court. 19. As noticed earlier, Division Bench of the Bombay High Court also dismissed the writ petitions by order dated 7th September, 2009 and 8th September, 2009 against which the appellant herein have filed Special Leave Petition (C) No. 4619 of 2011 and Civil Appeal No. 2147 of 2010. Submissions: 20. We have heard the learned counsel for the parties. 21. Mr. T.N. Razdan, learned counsel for the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ninterrupted Telecommunication Services to enable its citizen to effectively exercise the aforesaid right. This public duty was being provided through one of the departments i.e. Department of Telecommunication, in particular, the OCS. The same function was subsequently performed by the VSNL, a wholly owned government enterprises, till disinvestment. Even after disinvestment, VSNL continues to perform the same functions by connecting its subscribers to their receivers in India as well as abroad. VSNL performs the aforesaid functions under license in terms of Section 4 of Indian Telegraph Act, 1948. Being the licensee, VSNL is under the control of TRAI for all its activities of ILDS. After disinvestment, VSNL has spread its ILDS activities to 52 locations and has increased the strength of its employees from 3000 to 7000. It has been located in prime areas in all the cities like Delhi, Pune, and Kolkata. The aforesaid land belongs to Union of India and is in the possession of VSNL. Union of India is the licensor of all the lands, assets, equipment machine and tools under the license of VSNL. Land belonging to Union of India is worth lakhs of crores of rupees. In the face of this, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Air India Statutory Corporation vs. United Labour Union Ors. [2] 26. Dr. Chauhan further submitted that when the Government, in the exercise of its executive power by way of a policy decision, creates an entity or divests its functions, which may have a bearing upon the Fundamental Rights, in favour of a private body or transfer of public entity to a private body, in such an eventuality, the functions earlier discharged by the Government cannot be termed as purely a private function. He submitted that realizing the necessity to promote, protect and enjoyment of human rights, including the right to freedom of expression, on the internet and in other technologies, the U.N. Human Rights Council has passed a resolution with regard to the same. Similarly, the right to telecommunication (Overseas), a service exclusively provided by Government of India before disinvestment has the public law element and, therefore, nature of work performed by VSNL/TCL continued to remain the same. He submits that the functions performed by VSNL would satisfy all the tests for determining whether a function is a public function provided under the Human Rights Act, 1998. Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoved by the VSNL unless their case was placed before the competent authority in the Government. The solemn promise of not being removed was incorporated in the Conduct Discipline and Appeal Rules framed by the VSNL in the year 1992. 29. According to the appellants, the employees of the VSNL fall into three categories which are as under : (a) The employees that were transferred to VSNL by notification dated 19th March, 1986 i.e. erstwhile employees of OCS. (b) The employees who are recruited directly under the VSNL Recruitment and Promotion Rules, 1983 dated 21st May, 1993, subject to the rules of Conduct Discipline and Appeal Rules of 1992 framed by VSNL. (c) The employees recruited after the disinvestment on 13th February, 2002. The employees of TATA are guided by TATA Conduct Rules. It is pointed out that VSNL was granted a licence by the Ministry of Communication for short distance service and long distance service. International Long Distance Service (ILDS) was granted by the Department of Telecommunication, Government of India under Section 4 of the Indian Telegraph Act. The licences of VSNL for ILDS which expired on 31st March, 2004 has been re-granted for anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition under Article 226. Dr. Chauhan relied on a judgment of this Court in Ramesh Ahluwalia vs. State of Punjab Ors. in C.A.No.6634 of 2012 decided on 13th September, 2012. 33. In response, Mr. C.U. Singh, learned senior counsel appearing for the respondent has submitted that the tests for determining as to whether a particular body would fall within the definition of State or other authority have been well defined by this Court in a number of judgments. Therefore, there is no scope for enlarging the time tested definitions rendered by this Court. In support of the submissions, he relied on All India ITDC Workers Union Ors. v. ITDC Anr.[9]; Pradeep Biswas v. Indian Inst. of Chemical Biology[10]; G.Bassi Reddy vs. International Corps Research Institute[11]; Balco Employees Union vs. Union of India Ors.[12]; Agricultural Produce Market Committee vs. Ashok Harikunj Anr.[13] 34. On the basis of the tests laid down in the aforesaid judgments, learned counsel submitted that VSNL is not a State or other authority under Article 226 of the Constitution. Therefore, both the High Courts have correctly held that the writ petitions would not be amenable against the VSNL. 35. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the definition of State or other authority under Article 12. Ruma Pal, J. speaking for the majority considered the manner in which the aforesaid two expressions have been construed by this Court in the earlier cases. The tests propounded for determining as to when the Corporation will be said to be an instrumentality or agency of the Government as stated, Ramana Dayaram Shetty vs. International Airport Authority of India[17] were summarized as follows : (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State. 42. In view of the aforesaid authoritative decision of the Constitution Bench (Seven Judges), it would be wholly unnecessary for us to consider the other judgments cited by the learned counsel for the parties. 43. If one examines the facts in the present case on the basis of the aforesaid tests, the conclusion is inescapable that TCL cannot be said to be other authority within Article 12 of the Constitution of India. As noticed above, the share holding of Union of India would not satisfy test principles 1 and 2 in the case of Ramana Dayaram Shetty (supra). 44. On perusal of the facts, it would be evident that test No.3 would also not be satisfied as TCL does not enjoy a monopoly status in ILDS. So far as domestic market is concerned, there is open competition between the numerous operators, some of which have been enumerated earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orandum No.4/18/87 P PWD dated 5th July, 1989 of the Department of Pension and Pensioners Welfare, Government of India. In the said letter, certain safeguards have been granted to ex-OCS employees which are as under: Dismissal/removal from the service of a public sector undertaking/autonomous body after absorption for any subsequent misconduct shall not amount to forfeiture of his retirement benefits for the service rendered in the Central Government. Also in the event of Dismissal/removal of a transferred employee from the public sector undertaking/autonomous body the employee concerned will be allowed protection to the extent that the administrative Ministry/Department will review such order before taking a final decision. 46. In our opinion, the aforesaid condition would make no difference to the legal status of the appellants within VSNL. It was only an assurance that the rights to pension which had already accrued to them on the basis of their service in OCS shall be protected. Undoubtedly, this assurance was accepted by VSNL on 1st May, 1992. It was, in fact, incorporated in the rules governing the service conditions of these employees in VSNL. It is a matter of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in question ; (c) the nature and extent of the public interest in the function in question ; (d) the nature and extent of any statutory power or duty in relation to the function in question ; (e) the extent to which the state, directly or indirectly, regulates, supervises or inspects the performance of the function in question ; (f) the extent to which the state makes payment for the function in question ; (g) whether the function involves or may involve the use of statutory coercive powers ; (h) the extent of the risk that improper performance of the function might violate an individual s Convention right. Performance of public function by private provider 49. For the avoidance of doubt, for the purposes of Section 6(3)(b) of the Human Rights Act 1998, a function of a public nature includes a function which is required or enabled to be performed wholly or partially at public expense, irrespective of (a) the legal status of the person who performs the function, or (b) whether the person performs the function by reason of a contractual or other agreement or arrangement . 50. In our opinion, the functions performed by VSNL/TCL examined on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving authority to do so. In the present case, as noticed earlier, all telecom operators are providing commercial service for commercial considerations. Such an activity in substance is no different from the activities of a bookshop selling books. It would be no different from any other amenity which facilitates the dissemination of information or DATA through any medium. We are unable to appreciate the submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing the fundamental rights under Article 21(1)(a) of the Constitution. The recipients of the service of the telecom service voluntarily enter into a commercial agreement for receipt and transmission of information. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. Right to education is a fundamental right for children upto the age of 14 as provided in Article 21A. Therefore, reliance placed by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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