TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 509
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lief 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther 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 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 it. 22 The correct interpretation of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt 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 positive obligati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rming 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 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 Constituti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ge 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 Civi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "other authority" under Article 12 of the Constitution of India. The 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 Regulatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 instrume....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nment 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, observed as under vide order dated 6th May 2010: "These Special Leave Petitions are directed against the final judgment and order dated 25th Ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an S.L.P. is a speaking order, that is, 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 stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry objection was raised regarding the 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 payscales 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 prelimin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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: "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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o., 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Brothers v. Ratan Lal Singh, 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred 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 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 C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubmitted 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....: (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 .... "30. Before disinvestment of shares, Jessop and Co. was undisputedly, a Government Company and the Governme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....leti Venkateswarlu v. Motor and 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: "..While it is true that the right to relief must be judged by reference to the date the suit or the legal proceedings were in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it yet the Court has power to mould the relief in case the following three conditions are satisfied : "........(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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e : 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 l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary 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....