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2018 (11) TMI 1407
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....) terminating petitioner from service giving one month salary in lieu of notice period by referring to terms of letter of appointment dated 09.04.2009. 4. The facts in brief are that CUPGL is a Company registered under Companies Act, 1956 (hereinafter referred to as "Act, 1956") incorporated as a joint venture of Gas Authority of India Limited (hereinafter referred to as "GAIL") and Bharat Petroleum Corporation Limited (hereinafter referred to as "BPCL"). Petitioner was appointed as Manager (C&P) on 30.03.2010 in CUPGL initially on probation of one year. On 24.05.2013, he was placed under suspension. A chargesheet dated 24.05.2013 was also served upon him leveling three charges as under: "A. Providing forged Rail tickets and claiming travel expenses- It has come to the notice of the management that on the several occasions you have submitted forged Rail tickets for your official tours and claimed the expenses from the company. Please explain. B. Vehicle Loan - Non Hypothecation After taking vehicle loan from the Company, you have now refused to provide any vehicle relates documents to the Company. This in itself a very serious offence, if you ....
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....; hence termination is penal in nature and in violation of principles of natural justice, and, thus, liable to be set aside. CUPGL is a Company in which Central Government has funded more than 50 per cent. It is 'State' within the meaning of Article 12 of Constitution and hence petition before this Court under Article 226 is maintainable and termination order is assailable in writ jurisdiction. 7. On behalf of respondents-2 and 3 a counter affidavit has been filed admitting that CUPGL is a joint venture Company registered under Act, 1956 as a Public Limited Company by shares. 25 per cent shares, each, are held by BPCL and GAIL. Remaining 50 per cent shares are held by Indraprasth Gas Limited (hereinafter referred to as "IGL"). Neither Central Government nor State Government has any stake in CUPGL; no financial commitment or liability in CUPGL has been undertaken by any of the Government; it does not perform any Governmental work and is not supported and financed by either of the Governments, therefore, writ petition under Article 226 of the Constitution against CUPGL is not maintainable. 8. On the factual aspects, it is said that petitioner was appointed by letter of appointm....
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.... City Gas Distribution, Exploration and Production, Electricity Generation etc. IGL is also a joint venture of BPCL and GAIL engaged in supply of Piped Natural Gas and operating CNG filling Stations incorporate mainly to take over and operate Delhi City Gas Distribution Project. In view of the fact that 100 per cent share holding of CUPGL is held by Central Government's Companies or Joint Ventures, therefore, CUPGL is held also a 'State' within meaning of Article 12 of Constitution of India. Reference is also made to Supreme Court Judgment in Balmer Lawrie and Company Limited and others Vs. Partha Sarathi Sen Roy and others (2013) 8 SCC 345 observing that a subsidiary Company of a Government Company will also satisfy the test of being an instrumentality of 'State' within the meaning of Article 12 of Constitution. 11. In the Rejoinder Affidavit, it is stated that petitioner was never given any opportunity to appear in departmental inquiry pursuant to charge-sheet issued to him and no oral submissions were made by petitioner on 19.06.2013. 12. A Supplementary Rejoinder Affidavit has also been filed replying Supplementary Counter Affidavit stating that order of Central Infor....
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.... in dispute: (i) CUPGL is in the nature of a Subsidiary Company whose share holdings in entirety are owned by three Companies, namely, BPCL, GAIL and IGL. (ii) BPCL and GAIL though Companies registered under Act, 1956 but they are Central Government Companies and their share holding is with Central Government. They are admittedly 'State' within the meaning of Article 12 of Constitution. (iii) IGL is also a Joint Venture of BPCL and GAIL. 16. The submission of learned counsel appearing for respondents-2 and 3 is that there is no deep pervasive control exercised by Government over CUPGL. No financial aid is provided by State Government or Central Government. The mere fact that the Companies, namely, BPCL and GAIL are Central Government Companies would not bring CUPGL within the ambit of a Government Company wherein Central Government has a deep and pervasive control, if not directly but indirectly. Petitioner's counsel submitted that since Central Government is a controlling authority having 100 per cent share holding in BPCL and GAIL which are in effect joint holding companies of CUPGL, therefore, it can be said safely that Central Government has absolu....
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....re 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. (6) If a department of Government is transferred to a Corporation, it would be a strong factor supportive of this inference that Corporation is an instrumentality or agency of Government. 21. This judgment was followed and the above factors were reiterated subsequently in Ajay Hasia etc. Vs. Khalid Mujib Sehravardi and others (1981) 1 SCC 722 and Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn. & Anr. (2002) 2 SCC 167. 22. A seven-Judges Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors. (2002) 5 SCC 111, on this aspect observed, if the body is financially, functionally and administratively dominated by, or is under the control of Government and such control is particular to the body in question, and pervasive, the cumulative effect would establish that body as a 'State' within the meaning of Article 12. Court also held that when control exercised is merely regulatory, whether under a Statute or otherwise, such control would not be adequate to rende....
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.... law by judicial interpretations culminated in seven-Judges judgment in Pradeep Kumar Biswas (supra). In the meantime, in Balco Employees' Union (Regd.) Vs. Union of India and Ors. (2002) 2 SCC 333, Court noticed again change in socioeconomic policy of Government of India and found that State is now distancing itself from commercial activities and concentrating on governance rather than on business. Court said in Pradeep Kumar Biswas (supra) that the situation prevailing at the time of Sukhdev Singh (supra) is not in existence at least for the time being, hence, there seems to be no need to further expand the scope of "other authorities" in Article 12 by judicial interpretation at least for the time being. Court also noticed that in a democracy there is a dividing line between a State enterprise and a non- State enterprise, which is distinct and the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of the day require it to do so. 25. Considering as to what will be the sovereign functions and whether it is extended to include all welfare activities, initially it was held that functions approved being sovereign are defen....
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....he law may bestow upon such organization, the power of eminent domain. The State in this context, may be granted tax exemption, or given monopolistic status for certain purposes. The State being an abstract entity, can only act through an instrumentality or an agency of natural or juridical persons. The concept of an instrumentality or agency of the government is not limited to a corporation created by a statute, but is equally applicable to a company, or to a society. 27. Dealing with the term "pervasive control" Court in Balmer Lawrie and Company Limited and others Vs. Partha Sarathi Sen Roy and others (supra) held that term 'control' means check, restraint or influence. Control is intended to regulate, and to hold in check, or to restrain from action. The word 'regulate', would mean to control or to adjust by rule, or to subject to governing principles. 28. Holding certain factors relevant to determine whether a body is 'State' within the meaning of Article 12 of Constitution of India or not, Court in Balmer Lawrie and Company Limited and others Vs. Partha Sarathi Sen Roy and others (supra) said, whether Company/Corporation is an instrumentality or ....
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.... termination is challenged on the ground that petitioner has not been given adequate opportunity of defence and termination is in violation of principles of natural justice. It is not in dispute that terms and conditions are not governed by any Statute or statutory provision or by any provision made under any authority of Statute. Petitioner being in the Cadre of Manager, his terms and conditions are also not governed by Standing Orders made by Employer with respect to employees governed by provisions of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as "Act, 1946"). In these circumstances, in the cases like petitioner, consistently it has been laid down that employment is simply a part of contract. If employment is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") and, therefore, no remedy under Article 226 shall be available since employee, if complains about wrongful termination of service, then must avail remedy in common law by claiming damages....
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.... it is purely a contract of service resulting in a relationship of ordinary master and servant. 32. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such cases, a contract of service cannot be sought to be enforced by Court of law by giving relief of reinstatement or continuance in employment as this relief is barred under Act, 1963. 33. In Executive Committee of U.P. State Warehousing Corporation, Lucknow Vs. C.K. Tyagi AIR 1970 SC 1244 considering the question as to when such a relief is granted Apex Court observed: "Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain wellrecognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Simila....
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....nding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief. 37. Second category noticed by Court is where master and servant's relationship is governed by Industrial Law. In such cases, a servant, who is wrongfully dismissed, may be reinstated since Industrial Law contains special provisions and this is a departure from the reliefs available under Indian Contract Act and Specific Relief Act which do not provide for reinstatement of a servant. 38. The third category is where employment is in State or other public or local authorities or bodies created under statute. In such cases, if termination is contrary to Rules, Court can declare such termination illegal and grant relief of reinstatement for the reason that in such case, Court keeps employer within the limits of its statutory powers. The above view has been reiterated in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and....