Nirad Kumar Sarkar vs Union of India(UOI) and Others

Nagendra Prasad Singh, J.—This writ application has bean filed by the petitioner for quashing an order, dated the 20th August, 1973, issued by the General Manager, Hindustan Copper Ltd. (respondent No. 3). transferring toe petitioner from the post of Underground Manager of Mosaboni Mines, to the post of Assistant Manager, Lapso Kyanie Mines, a copy whereof is Annexure "1" to the writ application; and also for quashing an order, dated the 23rd October, 1973, of the game General Manager terminating the services of the petitioner with immediate effect in accordance with Clause 6 of the agreement, dated the l6th January, 1969, a copy whereof is Annexure "4" to the counter-affidavit filed on behalf of respondent Nos. 2 to 4. A copy of the termination order is Annexurs "4" to the petition filed by this petitioner u/s 151, read with Order VI, Rule 17, of the Code of Civil Procedure.

According to the petitioner, he is a qualified Mining Engineer and was appointed by the Indian Copper Corporation Ltd. (hereinafter referred to as the "Corporation") as an Underground Manager of the Mosaboni Mines on the 29th March, 1965, under an agreement entered into between the petitioner and the Corporation. The case of the petitioner is that there was no provision for trawfes1 of the services of the petitioner to and other piece or to any post ether than the Underground Manager.

On or about the 10th March. 1972, the President of India promulgated Indian Copper Corporation (Talking ever of Management) Ordinance, 1972 (Ordinance No. 4 of 1972), which was replaced by the Indian Copper Corporation (Taking over of Management) Act, 1972 (Act XI of 1972), which provided for taking over the Management of the undertaking of the Corporation pending acquisition of that undertaking. The Indian Copper Corporation (Acquisition of Undertaking) Act, 1972 (Act LVII of 1972) received the assent of the (resident on the 21st September, 1972 and was published in the Gazette of India on the same easy. Under the Indian Copper Corporation (Taking over of Management) Act, 1972, there was a provision that on and from the appointed date, that is. the 10th March. 1972 the management of the undertaking of the company vetted in the Central Gov. eminent; and on the passing of the Indian Copper Corporation (Acquisition of Undertaking) Act, 1972 (hereinafter referred to as the "Act"), the undertaking of the Corporation, by virtue of Section 4 of the Act, stood transferred to and vested in the Central Government. u/s 6 of the Act, the Central Government may, by order In writing, direst that the undertaking of the company, instead of continuing to vest in the Central Government, shall vest in Hindustan Capper either on the date of publication of the direction or on such earlier or later date as may be specified in that direction. In view of Section 9 of the Act, every officer or other employee employed immediately before the appointed day (that is, the 21st September, 1972, the date of the commencement of the Act) in connection with the affairs of the undertaking of the company shall become an officer or other employee of the Central Government and shall, as from the date of publication of the direction made under Sub-section (1) of Section 6 or the date specified therein, become an officer or other employee of Hindustan Copper and shall hold his office for the same tenure, at the same remuneration and upon the same terms and conditions as he would have held under the company.

According to the petitioner, is view of the aforesaid provisions of the Act, since the 21st September, 1972 he became an employee of the Central Government. The petitioner challenges the vires of the provision of that part of Section 9 under which the Central Government could transfer the services of the employees of the Corpora on to the Hindustani Copper in exercise of the powers conferred by Section 6(1) of the Act. The case of the petitioner is that he is still continuing in the service of the Central Government and the General Manager of Hindustan Copper had no authority, in law, to transfer the petitioner by the impugned order dated the 20th August, 1973 (Annexure "1"), from the post of Underground Manager to the post of Assistant Manager, which amounts to his redaction in rank. On the same ground the petitioner has also challenged the order of termination of his services by the said General Manager (Annexure "4"). On the aforesaid allegations the petitioner has prayed for quashing of the aforesaid communication (Annexures "1" and "4" and for a direction on the respondents, meaning thereby the Hindustan Copper Ltd. (respondent No. 2), the General Manager (respondent No. 3) and Mines Superintendent (respondent No. 4) to forbear from giving effect to the same". In this connection it may be mentioned that the Order of termination, dated the 23rd October, 1973 (Annexure "4") was passed during the pendency of the writ application, which had been filed on the 30th August, 1973 and admitted on the 5th September, 1973. After that, the petitioner filed the above mentioned application u/s 151, read with Order VI, Rule 17 of the CPC for amendment of the writ application, which was allowed on the 19th November, 1973, and it was directed that the said petition will form part of the main writ application.

A counter-affidavit has been filed on behalf of respondents 2 to 4. As mentioned above in the main writ application respondent No. 3 is the General Manager and respondent No. 4 is the Mines Superintendent of the Corporation which stands vested is Hindustan Copper (respondent No. 2). The counter-affidavit, however, appears to have been filed on behalf of the General Manager and the Mines Superintendent of Hindustan Copper Ltd. In the counter-affidavit it has been asserted that the petitioner was transferred from the post of Underground Manager to the Assistant Manager without any change in hit service conditions and the services of the petitioner have been terminated in accordance with the terms of agreement entered into between the petitioner and the Corporation. It has also been asserted that Hindustan Copper is not a "State", and, as such, there is no question of invoking the protection under Articles 16 and 311 of the Constitution. According to the respondents, after the notification, dated the 25th September, 1972, issued in exercise of the powers conferred under Sub-section (1) of Section 6 of the Act, the undertaking of the Corporation which had vested in the Central Government stood transferred to and vetted in the Hindustan Copper. A copy of the said notification is Annexure "A" to the counter-affidavit. It was submitted on behalf of the respondents that this Court, in exercise of its powers under Articles 226 and 227 of the Constitution, will not issue a writ on the Hindustan Copper Ltd. which is a private body.

6 From a bare reference to the different provisions of the Act, it is obvious that, on the appointed day that is the 21st September, 1972 the undertaking of the Corporation, which had been earlier taken over for management, stood transferred to and vetted in the Central Government. Section 4 of the Act is relevant for our purpose, and it reads thus:

On the appointed day, the undertaking of the company shall, by virtue of this Act, stand transferred to and vested in the Central Government.

In Section 5 the general effect of vesting u/s 4 has been prescribed. Section 6 of the Act contains the provision which empowers the Central Government to direct the vesting of the undertaking in the Hindustan Copper, Sub-Section (1) of section reads thus:

(1) Notwithstanding anything contained in Sections 4 and 5, the Central Government may, by order in writing, direct, that the undertaking of the company together with all its properties, assets, liabilities and obligations specified in Sub-section (1) of Section 5 shall, instead of continuing to vest in the Central Government, vest in Hindustan Copper either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in that direction.

Section 9 prescribes that, after the vesting u/s 4, every officer and employee of the undertaking will become an officer and employee or the Central Government, and, after the vesting u/s 6(1), shall become an officer and employee of the Hindustan Copper. Sub-section (1) of Section 9 is in the following words:

(1) Every officer or other employee employed, immediately before the appointed, day, in connection with the affairs of the undertaking of the company shall, as from that day, become an offices or other employee of the Central Government and shall, as from the date of publication of the direction made under Sub-section (1) of Section 6 or the date specified therein, become an officer or other employee of Hindustan Copper and shall hold his office by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges at to pension, gratuity and other matters as he could hare held under the company. If this Act had not been passed, and shall continue to do so, unless and until his employment in the Central Government or, as the case may be, Hindustan Copper, is terminated or until hit remuneration, terms and conditions are duly altered by the Central Government or Hindustan Copper:

Provided that nothing contained in this sub-section shall apply to any officer or other employee, who has, by notice in writing given to the Central Government within thirty days from the appointed day, intimated his intention of not becoming an officer or other employee of the Central Government or Hindustan Copper.

From the proviso to Sub-section (1) of Section 9 it will appear that Sub-section (1) of Section 9 is not to apply to any officer or employee who has, by notice in writing given to the Central Government, within thirty days from the appointed day, intimated his intention of not becoming an officer or employee of the Central Government or Hindustan Copper, but intends to continue as an officer and or employee of the Corporation. Admittedly, the petitioner never intimated any such intention to the Central Government. He never questioned the validity of the order, dated the 25th September, 1972 issued by the Central Government in exercise of its power u/s 6(1) of the Act (Annexure "A" to the counter-affidavit), nor has he challenged it in the present writ application. According to learned Counsel for the petitioner, in spite of that, the petitioner, since the appointed day, that is, the 21st September, 1972, when the Act came into force, is holding a civil post under the Central Government and any order u/s 6(1) of the Act could not transfer the services of the petitioner to the Hindustan Copper. In this connection, reliance has been placed on the Judgment of the Supreme Court in the The State of Mysore Vs. H. Papanna Gowda and Another etc., .

Learned Advocate-General appearing on behalf of respondents 2 to 4, submitted that the writ application is misconceived in law inasmuch as the petitioner was in the service of the Corporation on the basis of an agreement. Clause 3 of the agreement reads as follows:

The engagement of the Employee hereunder shall (subject as hereinafter mentioned) be for a period of three years from the 29th day of September, 1968 and thereafter shall continue until a new agreement is executed or until determined by either party giving to the other 3 months previous notice in writing.

and his services were terminated in accordance with Clause 6 of the agreement, which reads as under:

Notwithstanding anything to the contrary hereinbefore contained the company may at any time determine the engagement of the employee hereunder on giving to the employee three months'' notice in writing or in lieu of such notice three months'' salary and the employee shall not be entitled to any farther payment on account of salary or otherwise howsoever.

According to learned Advocate-General, in view of Section 9 of the Act, the petitioner was holding hit office and or the Hindustan Copper on the same terms and conditions on which he was employed by the Corporation and as such, Hindustan Copper was perfectly justified in terminating his services in accordance with the terms of the agreement and that issue cannot be agitated in this Court in a writ application. He also submitted that, on the allegation made in the writ application and in the application u/s 151, read with Order VI, Rule 21 of the CPC for amendment of the writ petition, the petitioner has orated for a mandamus on the Hindustan Copper, which is a private body, and, as such, the writ application should be dismissed on this ground alone.

In my opinion, there is substance in the contention of the learned Advocate-General that that petitioner has sought for a mandamus on the Hindustan Copper only and has not sought for any relief against the Union of India (respondent No. 1), perhaps, as there was no occasion for the same Mr. Ghose, appealing for the petitioner, has admitted this position; but has submitted that this Court has ample power to declare that the petitioner is still holding a civil post under the Central Government and the General Manager of the Hindustan Copper had no authority either to transfer the petitioner or to terminate hit services. In my opinion, it is difficult to accept the contention raised on behalf of the petitioner. It is well-settled by a series of decisions of the Supreme Court that any order of dismissal or discharge passed by corporate bodies cannot be questioned on the ground that the same was in contravention of Article 311 of the Constitution and it has been pointed out that the remedy for wrongful dismissal or discharge in sued cases is to file suit for damages. In this connection reference may be made to the cases of Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, and Indian Airlines Corporation Vs. Sukhdeo Rai, In the case of Munshi Singh and Others Vs. Union of India (UOI), , a question arose as to whether an employee of the Hindustan Steel Ltd., which is a Corporation, was the holder of a civil post having the protection of Article 311(2) of the Constitution, and it was held that, the Hindustan Steel Ltd. being a corporate7 body, its employees are not entitled to the protection of Article 311. As such, in the instant case, even if the allegation of the petitioner regarding wrongful termination of his services is to be accepted, he is not entitled to any relief against the Hindustan Copper Ltd. Then the question arises that, even if no writ can be issued by the Court on the Hindustan Copper whether the Court should declare that the petitioner is the holder of a civil post under the Central Government, and the Copper or its authorities could not pass any order purporting to transfer the petitioner or terminate his services. In my opinion, the answer must be in the negative Once it is held that this Court will not issue a writ quashing the orders passed on behalf or Hindustan Copper, which is a private body, this Court is not the forum for any such declaration that the petitioner it still holding a civil post under the Central Government in spite of the notification dated the 25th September, 1972 issued by the Central Government in exercise of its power u/s 6(1) of the Act Similarly, this Court need not, decide as to what is the effect of the proviso to Section 9 of the Act and as to whether, in view of the terms of the agreement, the petitioner has or has not any right to question the orders of his transfer and termination of his service. I am supported in this view by a decision of the Supreme Court in The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, . In that case majority of the shares of the Corporation in question were being held by the Union Government and the right of the Corporation to retrench certain workmen was being questioned in a writ jurisdiction. A division Bench of the High Court held that the order of retrenchment of the workers concerned was invalid, but, as the Corporation was registered under the Companies Act, having no statutory duty or Junction to perform, it was not one against which a writ petition for mandamus or any other writ could lie. The Division Bench further held that, though the writ petition was not maintainable, the Court could grant a declaration in favour of the three worn men while dismissing the writ petition. The judgment of the High Court was challenged in appeal before the Supreme Court, and a grievance was made on behalf of the Corporation that when the High Court was of me view that the writ application itself was not maintain-able, it could not have granted any such declaration. While upholding the said contention, it was observed by the Supreme Court as follows:

In our view once the writ petition was held to be misconceived on the ground that it could net lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute there under. The only course left open to the High Court was, therefore, to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The High Court, therefore, was in error in granting the said declaration.

In my opinion, the principle enunciated by the Supreme Court in the above case fully applies to the facts of the present case; and, in view of the fact that this writ application is not maintainable, the petitioner is not entitled to the declaration sought for.

In the result, the writ application is dismissed; but, in the circumstances, there will be no order as to costs.