Mani Ram & Anr. vs State Of U.P. Thru Secy. Sugar Cane ...
2021 Latest Caselaw 9348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 
Case :- SERVICE SINGLE No. - 14147 of 2020
 
Petitioner :- Mani Ram & Anr.
 
Respondent :- State Of U.P. Thru Secy. Sugar Cane Deptt. & Ors.
 
Counsel for Petitioner :- Vinod Kumar
 
Counsel for Respondent :- C.S.C.,Aprajita Bansal,Sudhanshu
 
Hon'ble Irshad Ali,J.

1. Case is called out. Learned counsel for the petitioners is not present.

2. Today, the case is listed peremptorily.

3. Learned Additional Chief Standing Counsel for State-respondent and Sri Sudhanshu, Advocate is present for the other respondents.

4. Vide order dated 26.7.2021, this Court directed to list this petition peremptorily with the permission to learned counsel for the petitioners to address the Court on the point of maintainability of the writ petition.

5. Learned counsel for the respondents, by placing reliance upon a judgment of the Hon'ble Supreme Court in the case of General Manager, Kisan Sahkari Chini Mills Ltd. Vs. Satrughan Nishad and others [(2003) 8 Supreme Court Cases 639], submits that the sugar mill, where the petitioners are working is not the instrumentality of the State within the meaning of Article 12 of the Constitution of India, therefore, the writ petition is not maintainable. He placed reliance upon paragraphs-8, 9, 10 and 11 of the aforesaid judgment.

6. In the light of the above, submission of learned counsel for the respondents is that the writ petition is liable to be dismissed on the ground that the mill in which the petitioners are working and claiming relief in exercise of power under Article 226 of the Constitution of India is not maintainable.

7. I have considered the submission of learned counsel for the respondents and perused the judgment relied upon.

8. Relevant paragraphs of the judgment in the case of General Manager, Kisan Sahkari Chini Mills Ltd. Vs. Satrughan Nishad (Supra) are quoted below :-

"8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution.

9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others v. V.R.Rudani and others (1989) 2 SCC 691 in which this Court examined the various aspects and 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 discharges a public duty that Article 226 of the Constitution can be invoked. In the cases of K.Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another (1997) 3 SCC 571 and VST Industries Ltd. v.VST Industries Workers' Union and another, (2001) 1 SCC 298, the same principle has been reiterated. Further, in the case of VST Industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. This being the position in that case, this Court held that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution. In the present case, the Mill is engaged in the manufacture and sale of sugar which, on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked.

10. Learned counsel appearing on behalf of the appellant in the alternative submitted that in the present batch of appeals, there are disputed questions of facts as according to the contesting respondents, they had worked for more than 240 days whereas stand of the Mill was that from the day the contesting respondents joined, in not a single year, the Mill was functional for a period of 240 days and during the years in question, the functioning of the Mill was between 45 days to 199 days. Further, according to the contesting respondents, some of them were permanent and others seasonal but according to the Mill, all the employees were seasonal workmen. In our view, these are disputed questions of facts which cannot be decided in writ jurisdiction and the same can be decided by the courts constituted under the provisions of the Act. For the foregoing reasons, we are of the view that the High Court was not justified in entertaining the writ applications.

11. In the result, the appeals are allowed, the impugned judgments rendered by the High Court are set aside and writ applications dismissed relegating the parties to raise an industrial dispute for adjudication by courts constituted under the provisions of Industrial Disputes Act, 1947. In the circumstances, the parties are directed to bear their own costs."

9. In view of the above, the Court is of the opinion that the writ petition is not maintainable as the sugar mill, where the petitioners are working is not the instrumentality of the State within the meaning of Article 12 of the Constitution of India.

10. Accordingly, the writ petition is hereby dismissed.

Order Date :- 3.8.2021

Gautam