Allahabad High Court
Dhananjay Rao vs Alkem Laboratories Limited Alkem ... on 6 August, 2015
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 2
Case :- WRIT - C No. - 40947 of 2015
Petitioner :- Dhananjay Rao
Respondent :- Alkem Laboratories Limited Alkem House & Another
Counsel for Petitioner :- Ashwani Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Sri H.R. Mishra, Senior Advocate, assisted by Sri Abhikshek Mishra has put in appearance on behalf of the first respondent, ALKEM Laboratories Limited.
The petitioner claims to be appointed as Area Business Manager, Azamgarh with the respondent-company, which being registered under the Companies Act. The petitioner seeks the following relief in writ jurisdiction:
"issue writ, order or direction in the nature of mandamus directing respondents not to harass the petitioner and disburse his entire salary and incentive to the petitioner within specified period".
Sri H.R. Mishra, learned senior counsel would raise a preliminary objection that the petition under Article 226 of the Constitution would not lie to enforce a private contract entered between the petitioner and a private company. The first respondent being not a State within the meaning of Article 12 of the Constitution of India, the petitioner for redressal of his grievance could approach the Civil Court or Labour Court.
Learned counsel for the petitioner, in rebuttal placed reliance upon a decision of Hon'ble Apex Court rendered in Binny Ltd. and another Vs. V. Sadasivan and others1, wherein it has been held that writ of mandamus can be issued against a private body, which not being a State within the meaning of Article 12 of the Constitution provided there be a public law element.
In the case of Pradip Kumar Biswas vs. Indian Institute of Chemical Biology2 a Seven Judge Bench considered the question as to whether Indian Institute of Chemical Biology would fall within the definition of State or other authority under Article 12. The tests propounded for determining as to when a Corporation will be said to be an instrumentality or agency of the Government, as stated in Ramana Dayaram Shetty vs. International Airport Authority of India3 was summarized:
"(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
(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 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
(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
In Binny Ltd. (supra) wherein the Court reiterated the observations made in Dwarkanath vs. Income-tax Officer, Special Circle, D-ward, Kanpur & Anr4, and observed:
"It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest."
In Jatya Pal Singh vs. Union of India5 where the function of providing international long distance telecommunications services (ILDS) prior to 1986, was being performed by OCS, a department of the Ministry of Telecommunications, Government of India (GoI). VSNL was incorporated under the Companies Act, 1956 as a wholly-owned government company to take over the activities of erstwhile OCS. The Supreme Court held in order for TCL/VSNL (Tata Group Company), a private entity to be declared as "State" or "other authority" within the meaning of Article 12 of the Constitution, it would have to fall within the well-recognized parameters laid down by the Supreme Court in Pradeep Kumar Biswas (supra). The Court held that TCL cannot be said to be an "other authority" within Article 12 of the Constitution. Merely because TCL is performing the functions which were initially performed by OCS would not be sufficient to hold that TCL is performing a public function. (Refer: State Bank of India vs. K.C. Tharakan and others6)
The learned counsel for the petitioner is not disputing that the petitioner is an employee of a private company which is engaged in manufacture of pharmaceutical and medicines, the employer and employee relationship does not reflect any public law element, therefore, writ jurisdiction cannot be invoked to enforce a private contract entered into between private parties.
Accordingly, the petition is dismissed. However, dismissal of the writ petition shall not preclude the petitioner from availing remedy under law before the appropriate forum for redressal of his grievance.
No order as to costs.
Order Date :- 6.8.2015
S.Prakash
