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TMI Blog2024 (5) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection was raised regarding maintainability of the writ petition on the ground that during pendency of the proceedings, the company had changed hands and no longer retained the characteristic of a State or Other authority as defined under Article 12 of the Constitution of India. The assertion of the writ petitioner was that the petition was maintainable against the respondent on the date it was filed. As per the writ petitioner, the rights and obligations of the parties stood crystallized on the date of commencement of litigation and thus, the reliefs should be decided with reference to the date on which the party entered the portals of the Court. Various High Courts across the country have taken a consistent view over a period of time on the pertinent question presented for consideration that the subsequent event i.e. the disinvestment of the Government company and its devolution into a private company would make the company immune from being subjected to writ jurisdiction under Article 226 of the Constitution of India, even if the litigant had entered the portals of the Court while the employer was the Government. Whether the appellants herein could have been non-suited on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 20th September, 2022 passed by the Division Bench of the High Court of Bombay thereby dismissing four writ petitions instituted by the appellants being the former employees of respondent No.3 i.e. Air India Limited(hereinafter referred to as AIL ) as members of its cabin crew force. Appellants came to be employed in AIL in the late 1980s and all of them retired between 2016 and 2018. 3. Writ Petition Nos. 123 of 2014 Filed on 30th August, 2013 and 844 of 2014 Filed on 09th October, 2014 were filed for alleged stagnation in pay and non-promotion of the employees. Writ Petition No. 844 of 2014 additionally raised issues of anomalies in the fixation of pay arising out of and for implementation of the report of the Justice Dharmadhikari Committee Constituted by the respondent No.1 i.e. Union of India(through its Ministry of Civil Aviation) to harmonize the differential service conditions of AIL and Indian Airlines Ltd, which came to be merged . Writ Petition Nos. 1770 of 2011 Filed on 14th June, 2011 and 1536 of 2013 Filed on 19th March, 2013 , pertained to the delay in payment of wage revision arrears and the withdrawal of eight out of the seventeen allowances already paid to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt concluded that with the privatisation of respondent No. 3(AIL), jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ to respondent No. 3(AIL), particularly in its role as an employer, did not subsist and disposed of the writ petitions vide common impugned judgment dated 20th September 2022, which is assailed in the present appeals by special leave. Submissions and contentions on behalf of the appellants: - 7. Shri Sanjay Singhvi, learned senior counsel appearing on behalf of the appellants submitted that the right to seek remedy stands crystallised on the date of institution of proceedings and though subsequent events can be considered, it is a well settled tenet of law that such subsequent events can be looked at only to advance equity rather than to defeat it. Reliance in this regard was placed by learned senior counsel upon Pasupuleti Venkateswarlu v. Motor General Traders (1975) 1 SCC 770 ; Beg Raj Singh v. State of U.P. and Ors. (2003) 1 SCC 726 . He urged that different view is permissible only in exceptional circumstances and in no event can a party be divested of its substantive rights on account of such subsequent event as laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation, 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 : 26 All LJ 371] ). 8. Reliance was also placed by the learned senior counsel on the judgment of Ashok Kumar Gupta Ors. v. Union of India Ors. (2007) SCC OnLine Cal 264 , wherein the Division Bench of Calcutta High Court, after adverting to the extant principles concerning the maintainability of writ proceedings as on the date of the institution, held that an employer which had been privatised during the pendency of a writ appeal filed against the order rejecting the writ petition would continue to be amenable to writ jurisdiction under Article 226 of the Constitution of India. The relevant portion of Ashok Kumar Gupta(supra) relied upon i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this judicial review : At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The statute is phrased in flexible terms. It gives scope for development. It uses the words having regard to . Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to have regard to it. So the previous law as to who are and who are not public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust running a science college affiliated to the Gujarat University under the Gujarat University Act, 1949. The teachers working in that college were paid in the pay scales recommended by the University Grants Commission and the college was an aided institution. There was some dispute between the University Teachers Association and the University regarding the fixation of their pay scales. Ultimately, the Chancellor passed an award and this award was accepted by the State Government as well as the University and the University directed to pay the teachers as per the award. The appellants refused to implement the award and the respondents filed a writ petition seeking a writ of mandamus and in the writ petition the appellants contended that the college managed by the Trust was not an authority coming within the purview of Article 12 of the Constitution and therefore the writ petition was not maintainable. This plea was rejected and this Court held that the writ of mandamus would lie against a private individual and the words any person or authority used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State and they may cover any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of India, would clearly show that the test of jurisdiction is to be invoked/applied at the time of issuance of the writ by the High Court. It is at the stage of issuance of a writ that the High Court actually exercises its writ jurisdiction, and therefore, it is at that point of time, the High Court ought to be satisfied that the person to whom it is issuing a writ is amenable to the extraordinary writ jurisdiction. 15. Learned senior counsel placed reliance upon the decision of the High Court of Gujarat in the case of Kalpana Yogesh Dhagat through Legal Heirs v. Reliance Industries Ltd. 2016 SCC OnLine Guj 10186 , wherein a writ petition had been filed against Indian Petrochemical Corporation Ltd.( IPCL ) in 2002 which came to be decided in the year 2016. In the intervening period, the IPCL was privatized and taken over by Reliance Industries Limited(RIL) in 2007. The pertinent issue that cropped up for consideration was whether the writ petition filed against IPCL was maintainable even after its privatization. Learned Single Judge HMJ J.B. Pardiwala (as his lordship then was) of the Gujarat High Court held that the writ petition was not maintainable. The relevant portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings shall be taken into consideration for the purpose of limitation. In the facts and circumstances of the case, there will be no order as to costs. 17. Learned senior counsel further submitted that this Court in the case of Kaushal Kishor(supra) has held that a writ cannot be issued against non-state entities that are not performing any Public Function . He further pointed out that it is the conceded case of the appellants that post privatisation, respondent No. 3(AIL) does not perform any Public Function and in any case running a private airline with purely a commercial motive can never be equated to performing a Public Duty . 18. He further submitted that the issue is not that of a Right but of a Remedy i.e. dismissal of a writ petition filed by the appellants on the ground of maintainability would not lead to extinguishment of the rights of the appellants and only the forum for adjudication of their dispute would change. Any alleged violations of Articles 14 or 16 of the Constitution of India are simply grounds for claiming relief which can well be agitated before any other appropriate forum. 19. Learned senior counsel further submitted that appellants rights, if any, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ( emphasis supplied ) 25. In the case of Kalpana Yogesh Dhagat(supra), the learned Single Judge of the Gujarat High Court went on to uphold the preliminary objection regarding the maintainability of the writ petition against Reliance Industries Limited(RIL). The relevant excerpts from the said judgment are extracted hereinbelow: - 19. ..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 eleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant 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. 59. 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 declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ( emphasis supplied ) 28. Further, in the case of Beg Raj Singh(supra), this Court observed as below: - 7. . 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 Stateconferred 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 or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18) 40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L S) 258] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of mandamus . Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority . It can be issued for the enforcement of any of the fundamental rights and for any other purpose . *** 20. The term authority used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may 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 the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach another forum for seeking their remedy. Thus, the question No.2 is decided against the appellants. 39. By no stretch of imagination, the delay in disposal of the writ petitions could have been a ground to continue with and maintain the writ petitions because the forum that is the High Court where the writ petitions were instituted could not have issued a writ to the private respondent which had changed hands in the intervening period. Hence, the question No.3 is also decided against the appellants. 40. Resultantly, the view taken by the Division Bench of the Bombay High Court in denying equitable relief to the appellants herein and relegating them to approach the appropriate forum for ventilating their grievances is the only just and permissible view. 41. We may also note that the appellants raised grievances by way of filing the captioned writ petitions between 2011 and 2013 regarding various service-related issues which cropped up between the appellants and the erstwhile employer between 2007 and 2010. Therefore, it is clear that the writ petitions came to be instituted with substantial delay from the time when the cause of action had accrued to the appellants. 42. It may fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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