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Judgment
Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. A Dhar, learned counsel for the petitioner. Also heard Mr. Sisir Dutta, learned senior counsel assisted by Mr. S Dutta, learned counsel for the respondents.
This is the second round of litigation before this Court between the petitioner and the respondent. The petitioner is a permanent employee of the LIC Housing Finance Ltd (in short LICHFL). The LICHFL is a statutory Government Company, where LIC holds shareholding of 45.24% thereby making it a Government Company. The petitioner is aggrieved by the alleged workplace harassment, including targeted and punitive transfers and denial of transfer benefits, character assassination, stigmatic remarks of “Non-Performance” demotion in rank/post and intentional delay of biometric installation which adversely affected the future service prospects of the writ petitioner. According to the petitioner he has been a whistle blower and reported several incidents of corruption, financial irregularities and malpractices involving the employees and officers of LICHFL, due to which he has become a target of continued victimization.
The petitioner was appointed as a Junior Executive Assistant of 11.10.2004 in LICHFL and was posted at Siliguri Back Office, which is presently not in operation. During his career, the petitioner was promoted to the cadre of Associated Chief Manager and transferred to the Guwahati Area Office as Area Manager in May, 2022. Under the petitioner the performance of the office was good in the concerned financial year for which the petitioner received good PLI, which is an annual incentive. In 2023 after formation of the Cluster, the petitioner was transferred from the post of Area Manager, Guwahati and posted as Cluster Head of Guwahati Cluster vide order dated 07.05.2023. Under the Guwahati Cluster there are six area offices in Assam namely Guwahati, Jorhat, Silchar, Dispur, Tezpur, Dibrugarh and one in Tripura.
By order No. LICHFL/CO/HR/PRTR/202-26/014 dated 24.05.2025, petitioner was transferred from the post of Cluster Head, Guwahati cluster as Credit Manager, Kolkata Cluster with the stigmatic remark within “transfer (Non-performance)”. This order of transfer, according to the petitioner, it violates the guidelines of transfer, which provides as under:
a)Change in Department within the office once the employee has completed 4 years or more in that department.
b)Change in Office within the city once the employee has completed 5 years or more in some office.
c)Change in City once the employee has completed 8 years or more in same city
d)Change in State once the employee has completed 10 years or more in same State
e)Change in region once the employee has completed 10 years or more in same State.
According to the petitioner, he is yet to complete three years in Guwahati after appointment as Area Manager, Guwahati area office, vide his Transfer order dated 23.05.2022. Therefore, the impugned transfer order was issued in violation of the guidelines, that too with a stigmatic remark “non-performance” which was not specified as a criteria for transfer. According to the petitioner, the transfer of the petitioner putting a stigmatic remark casted an aspersion on the character, integrity, efficiency or conduct of the petitioner.
Being aggrieved, the petitioner approached this Court by filing W.P(C) No. 2366/2025 assailing the order of transfer. However, the said writ petition was withdrawn and the petitioner approached the learned Labour Court, Kamrup Metro by filing a complaint under Section 2A read with Section 33 and 33(3)(b) of the Industrial Disputes Act, 1947. The said complaint was registered as Misc. Case No. 2/2025. The learned Labour Court, by order dated 19.06.2025, stayed the impugned order of transfer dated 24.04.2025. Thereafter, the petitioner again filed WP(C) No. 3513/2025 before this court and by order dated 23.06.2025, the impugned order of transfer dated 24.04.2025 was stayed. However, the said writ petition was again withdrawn on 27.06.2025 since the writ petitioner had already approached the Labour Court. In view of the stay of the impugned order dated 24.04.2025 by the learned Labour Court by the order dated 19.06.2025, the respondent authorities by order dated 25.06.2025 while putting the transfer order dated 24.04.2025 on hold, revised the earlier office order dated 24.04.2025 and re-designated and posted the petitioner as Credit Manager, Guwahati Cluster and thereby demoting the petitioner in rank and post without any cogent reason.
The respondent authorities being aggrieved by the order dated 19.06.2025 passed by the learned Labour Court staying the impugned order dated 24.04.2025. Being aggrieved, filed the writ petition before this court being WP(C) No. 4693/2025 praying for quashing of the entire proceedings pending before the learned Labour Court. The writ petition filed by the respondents was allowed by the order dated 29.01.2026 passed in WP(C) No. 4693/2025, whereby the proceedings pending before the learned Labour Court, Kamrup (M) was set aside, holding that the said proceedings will not preclude the petitioner to approach the competent court of civil jurisdiction wherever the grievances of the petitioner can be redressed. By the said order, the Coordinate Bench directed the parties to maintain status quo for a period of 10 days so as to enable the appropriate forum to decide the entitlement of the petitioner to any interim directions on its merits without being influenced made in this judgment.
The learned Senior counsel for the petitioner urged before this court that by the impugned order dated 24.04.2025, which was altered by the subsequent order dated 25.06.2025, the respondent authorities had demoted or reduced in rank the petitioner, which is clearly a punitive action by the respondent authorities without affording any opportunity of hearing. The petitioner has filed the present proceedings for redressal of his grievances against the stigmatic remarks as non-performance, resulting in the punitive transfer orders demoting the petitioner in rank/position of the petitioner. It is submitted that by the impugned order, the petitioner was demoted from the rank of Cluster Head to Credit Manager with the remark “non-performance” is ex-facie, stigmatic and punitive. The expression “non-performance” casts a serious aspersion on the petitioner's efficiency and competence and gravely affects his service career and future prospects. Reduction in rank being a major penalty. The respondent could not have imposed the same without issuance of charge sheet, conducting a departmental enquiry and affording opportunity of hearing. According to the learned Senior counsel for the petitioner that these stigmatic remarks could not have been imposed on the petitioner without holding a regular disciplinary enquiry and without affording the petitioner opportunity of being heard. Therefore, the demotion of the petitioner or reduction in rank of the petitioner from Cluster Head to Credit Manager is violating of Article 14 and 16 of the Constitution. It is submitted that the petitioner has been imposed the punishment under the garb of so-called transfer, which could not have been done without holding a proper enquiry. It is further submitted that the impugned orders are orders which are on alleged misconduct of the petitioner and therefore could not have been issued in exigencies of service. Rather, they are punitive and stigmatic in nature and thereby casts serious aspersions on the performance of the writ petitioner. It is submitted that these impugned orders, therefore being arbitrary, unreasonable and in colorable exercise of power are unsustainable in the eye of law and the same should therefore be set aside and quashed. In support of his contentions, the learned Senior counsel for the petitioner refers to and relies on the following judgments:
(1)Kandapazha Nadar and Ors. Vs. Chitraganiammal and Ors1;
(2)Vivek V. Vs. LIC Housing Finance Limited and Ors2 (W.A No. 904/2022); and
(3)S. Shobha Vs. Muthoot Finance Ltd3
(4)Ajay Hasia and Ors, Vs. Khalid Mujib Sehravardi and Ors4
Per contra, the learned Senior Counsel for the respondents disputes the arguments made by the learned Senior counsel for the petitioner. The respondents have contested the matter by filing their affidavit in opposition. It is submitted that the respondent company is not a public sector undertaking, nor does it perform any public or statutory duties and is an entirely private entity. Therefore, any order of transfer by the respondents are in exercise of its routine administrative exigencies and such orders in respect of the service conditions of the employees of a private entity, cannot be assailed in a writ petition. The learned senior counsel submits the respondent is not a State within the meaning of Article 12. It is a separate entity from the LIC, which is independent and it retains its independent and corporate personality, notwithstanding that LIC of India is also a shareholder in the company. It is submitted that the LIC of India holds 45.24% of the share capital, which is less than the statutory threshold of 51%. The remaining 54.76% is held by public shareholders including institutional investors, mutual funds, FIIs and other public shareholders. The respondent company operates as an independent listed public company and is not an arm of the government and therefore not a State under Article 12 and consequently, the questions which are urged before the present proceedings are mere questions pertaining to the service conditions of one employee working under the respondent company. Therefore, it is not a question of seeking a direction to the respondent authorities to perform any public duty or function. Rather, the petitioner is an employee of the respondent company and is agreed by orders passed by the respondent company as Employer and therefore has assailed the order of transfer, which is a dispute between the petitioner and the respondent pertaining to the service conditions of the petitioner-employee. The respondents further dispute the submissions of the learned senior for the petitioner that there was any demotion in rank or there was any stigmatic remarks, which will have the effect of casting any aspersions on the performance of the petitioner. Therefore, the allegation of demotion or reduction in rank is wholly misconceived, baseless and contrary to the facts. It is submitted that there is no change or reduction in the basic salary, pay scale, grade or other fixed components of remuneration except for the change reflected in July 2025 by the cessation of the in-charge allowance. According to the respondents, the petitioner's transfer and posting as Credit Manager is in the same cadre status as that of Associate Chief Manager and since he continues to draw the same scale of pay as applicable to the said cadre, there is no reduction in rank or reduction in status and such contention is totally misconceived and therefore denied. The learned senior counsel for the respondents refers to and relies upon the following judgments:
In rejoinder, the learned Senior counsel for the petitioner submits that the LICI besides notwithstanding its minority shareholding, has deep and pervasive control over the respondent company. It is a subsidiary company of the LICI. The higher officials of the LICI are often transferred for taking charges and responsibilities in the respondent company. The respondent company provides service only as a housing loan department of the LICI and it follows the instructions issued by LICI in toto from time to time. Therefore, as the LICI is a state and the respondent company operates as a Subsidiary company of the LICI and is under the control and supervision of the LICI. It is submitted that the key management personnel and other important officials of the management of the company for running the affairs of the company are appointed by the LICI including Area Manager, Area Office Level, Zonal Manager etc. Therefore, the respondent company is under the deep and pervasive control of the LICI in respect of its functioning as well as the administrative control. The learned senior counsel for the petitioner submits that they have referred to various circulars issued from time to time by the respondents appointing the key management personnel from LICI, which makes it apparent that the LICI exercises unilateral control over the governance, management and/or the decision making processes of the respondent company. The further contention of the learned senior counsel for the petitioner is that when an employee in the rank of Associate Chief Manager or Chief Manager is posted as the Head of a Cluster, he or she is designated as a “Cluster Head”. Number of employees for credit appraisal, receivable management and channel management are posted under the Cluster Head. The post of Credit Manager is below the rank of a Cluster Head, who is in the cadre of Associate Chief Manager or Chief Manager. It is further submitted that in the impugned order of transfer, there is a remark or a comment which goes to show that the petitioner has been transferred, it’s a stigmatic comment of “non-performance”. It is further submitted that in the impugned order dated 24.04.2025, there were 2 other cluster heads at serial No. 10 and serial No. 13 who were also transferred initially with the stigmatic comment “non-performance” in the same cadre that is Associate Chief Manager. However, by the subsequent office order of 24.04.2026, these two officials have been transferred as Cluster Head, Patna Cluster and Assistant Regional Manager (Credit and Admin), Eastern region and their names appear at serial No. 15 and 20 respectively. No comment of “non-performance” is seen against the names of these 2 officers. It is submitted that as a matter of fact by the office order dated 24.04.2026, none of the officials of the company have been transferred with stigmatic comments. The learned Senior counsel for the petitioner submits that a Division Bench of the Kerala High Court in a similar matter against the same respondent had held that the writ petition is maintainable and that as the respondent company is considered to be a State within the meaning of Article 12.
The learned senior counsel for the petitioner submits that the test of whether an entity is a state within Article 12 is not to the enquiry to see as to how the juristic person is born but why it has been brought into existence. It is therefore immaterial whether the corporation is created by statute or is under a statute. It is submitted that these tests for deciding whether an entity is a State within Article 12 are not conclusive, they will have to be decided on the facts and circumstances of each case. In the facts of the present proceeding, since there is a pervasive control and complete supervision by the LICI over the respondent authority and the actions of the respondent authority in respect of the writ petitioner being violative of Article 14 and 16, it is a fit case where a writ ought to be issued to the respondents calling for directions to the respondents to recall the impugned order of stigmatic transfer and/or to interfere and set aside the impugned order.
The learned counsel for the parties have been heard. Pleadings available on record have been carefully perused.
The moot question as to whether the respondent is an entity which is amenable have been examined and discussed in several judgments of the Apex Court time and again.
It is necessary to refer to these judgments which are also relied upon by the parties before this Court in the present proceedings.
In Kandapazha Nadar (supra), it was held by the Apex Court that the effect of the order passed by the High Court granting leave to withdraw the earlier suit for declaration of title and injunction with respect to suit property not giving them liberty to file afresh suit did not mean that the petitioners were stopped from raising the defence regarding the validity of the covenants in their favour in the second round of litigation. The Apex Court held that it is the provision in Order 23 Rule 1(3) and not any other principle or res judicata that precludes the plaintiff in a case falling thereunder from bringing a fresh suit in respect of which a suit was withdrawn without leave having been granted to file a suit. However, this will not preclude the petitioners from raising the defence in the second round of litigation. This issue will have no application in the present proceedings, in view of the discussions in the subsequent proceedings.
In Vivek V. (supra), the Division Bench of the Kerala High Court held that LICHFL is a state in view of the shareholding ratio by the LIC to the extent of 45.24% which is almost close to 50% and therefore, the LICHFL is a state within the Article 12 and is amenable to the writ jurisdiction.
In Ajay Hasia (supra), the Apex Court held that the constitutional philosophy of a democratic socialist republic requiring the Government to undertake a multitude of socio-economic operations and the practical advantages of functioning through the legal device of a corporation for a myriad of corporate, commercial and economic activities. But any such contrivance of carrying on such activities cannot exonerate the Government of its basic obligation to respect the fundamental rights of its citizens, otherwise it would be the easiest thing for any Government to assign to a plurality of corporations almost every state business and thereby cheat the people of this country of the fundamental rights guaranteed to them under the Constitution. The Apex Court went on to enunciate certain tests applicable for determining whether an entity is an instrumentality or an agency of the state or an expression that does not figure in Article 12 of the Constitution but would constitute an authority under Article 12 of the Constitution. The Apex Court reiterated the tests for determining as to whether a corporation can be said to be an instrumentality or an agency of the Government, which was already culled out in the judgment of the Apex Court rendered in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
However, it is equally necessary to refer the findings of the Apex Court in paragraph 12 of the judgment rendered in Ajay Hasia (supra) in respect of a juristic entity which may be an authority and therefore, a state within the meaning of Article 12:
“12.It is also necessary to add that merely because a juristic entity may be an
“authority” and therefore “State” within the meaning of Article 12, it may not be elevated to the position of “State” for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of “State” in Article 12 which includes an “authority” within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be “State” for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. That is why the decisions of this Court in S.L. Aggarwal v. Hindustan Steel Ltd. [(1970) 1 SCC 177 : (1970) 3 SCR 363] and other cases involving the applicability of Article 311 have no relevance to the issue before us.”
In Board of Control for Cricket in India (supra), the relevant paragraphs are extracted below:
“29.In Board of Control for Cricket in India v. Netaji Cricket Club [(2005) 4 SCC 741] , this Court had an occasion to consider the role and the nature of functions being discharged by BCCI. This Court held that the Board's control over the sport of cricket was deep and pervasive and that it exercised enormous public functions, which made it obligatory for the Board to follow the doctrine of “fairness and good faith”. This Court said : (SCC pp. 762-63, paras 80-81)
“80.The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regards regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State associations except Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC, it represents the country in the international fora. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in the international fora. It exercises total control over the players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deeply pervasive and complete.
81.In law, there cannot be any dispute that having regard to the enormity of power exercised by it, the Board is bound to follow the doctrine of ‘fairness’ and ‘good faith’ in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards.”
30.The question whether the respondent BCCI is “State” within the meaning of Article 12 fell directly for consideration of this Court in Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] . By a majority of 3 : 2 this Court ruled that respondent BCCI was not “State” within the meaning of Article
12.This Court held that the Board was not created by any statute, nor was a part of the share capital held by the Government. There was practically no financial assistance given to the Board by the Government, and even when the Board did enjoy a monopoly status in the field of cricket such status was not State conferred or State protected. So also there is no deep and pervasive State control. The control, if any, is only regulatory in nature as applicable to other similar bodies. The control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions. The Board is not created by transfer of a government-owned corporation and was an autonomous body. Relying upon the tests laid down in Pradeep Kumar Biswas case [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : 2002 SCC (L&S) 633] , this Court held that the Board was not financially, functionally or administratively dominated by or under the control of the Government so as to bring it within the expression “State” appearing in Article 12 of the Constitution. Having said that this Court examined whether the Board was discharging public duties in the nature of State functions.
32.Having said that this Court recognised the fact that the Board was discharging some duties like the selection of Indian Cricket Team, controlling the activities of the players which activities were akin to public duties or State functions so that if there is any breach of a constitutional or statutory obligation or the rights of other citizens, the aggrieved party shall be entitled to seek redress under the ordinary law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32. This Court observed : (Zee Telefilms Ltd. case [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] , SCC p. 682, para 31)
“31.Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.”
33.The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it is not “State” within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the “nature of duties and functions” which BCCI performs. It is common ground that the respondent Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations, norms and standards covering all aspects of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and supporting State associations. It frames pension schemes and incurs expenditure on coaches, trainers, etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket. On the contrary, the Government of India has allowed the Board to select the national team which is then recognised by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity.
34.The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.”
In Federal Bank Ltd. (supra) the Apex Court held that in respect of issuance of mandamus to a company registered under the Company's Act where a company has been set up voluntarily for their own purposes and interests and not for the purposes of building the economy of the state it is a private affair of the company, such companies would normally not be amenable to a writ jurisdiction under Article 26 of Constitution but in certain circumstances a writ may be issued to such private bodies or persons, as there may be statutes which may need to be complied with by all concerned including the private companies. The Apex Court held that a mandamus can be issued to any person or an authority performing public duty, owing positive obligation to the affected party merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc, as provided under Section 5(ca) of the banking Regulation Act, it does not mean that the private companies carrying on business or commercial activities or banking, discharge any public function or public duty. The Apex Court held that a private company carrying on a banking business as a scheduled bank cannot be termed as an institution or a company carrying on any statutory or public duty, a private person or a person may be amenable to writ jurisdiction only where it may be necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it and accordingly, the writ petition was held to be not maintainable by Apex Court in that matter.
18.a. In S. Sobha (Supra), the Apex Court while deciding the issue of whether a body, public or private, is required to be categorized as “amenable” or “not amenable” to a writ jurisdiction laid down the most important and vital consideration being the function test. In the case before the Apex Court, the issue was writ petition being filed against the respondent company, which was a finance company and is a company registered under the Companies Act 1956. The writ petition was allowed by the learned Single Judge as it came to be observed by the learned Single Judge that the said company had acted contrary to the interim order. The writ petition merited entertainment notwithstanding the fact that the respondent is a private financier and would not completely answer its status as being a state under Article 12 of the Constitution. The Division Bench of the High Court took the view that the said company is not a state within the meaning of Article 12 of the Constitution and therefore not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It is under these circumstances, the Apex Court was required to decide the issue. The Court considered several precedents rendered by the Supreme Court. The contention of the appellant before the Apex Court that the respondent Muthoot Finance Limited notwithstanding being a private company is duty-bound to follow the guidelines and rules of the Reserve Bank of India for smooth conduct of its affairs in carrying on the business and is therefore a statutory authority amenable to writ jurisdiction was rejected by the Apex Court. Ultimately, the Apex Court concluded by laying down the guidelines.
“9.We may sum up thus:
(1)For issuing writ against a legal entity, it would have to be an instrumentality or agency of a State or should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence Governmental.
(2)A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government; (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.
(3)Although a non-banking finance company like the Muthoot Finance Ltd. with which we are concerned is duty bound to follow and abide by the guidelines provided by the Reserve Bank of India for smooth conduct of its affairs in carrying on its business, yet those are of regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the company.
(4)A private company carrying on banking business as a Scheduled bank cannot be termed as a company carrying on any public function or public duty.
(5)Normally, mandamus is issued to a public body or authority to compel it to perform some public duty cast upon it by some statute or statutory rule. In exceptional cases a writ of mandamus or a writ in the nature of mandamus may issue to a private body, but only where a public duty is cast upon such private body by a statute or statutory rule and only to compel such body to perform its public duty.
(6)Merely because a statue or a rule having the force of a statute requires a company or some other body to do a particular thing, it does not possess the attribute of a statutory body.
(7)If a private body is discharging a public function and the denial of any rights is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial but, nevertheless, there must be the public law element in such action.
(8)According to Halsbury's Laws of England, 3rd Ed. Vol.30, p.682, “a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform, and which perform the duties and carries out its transactions for the benefit of the public and not for private profit”. There cannot be any general definition of public authority or public action. The facts of each case decide the point.”
18.b. In Ajay Vijh (Supra), the question of the maintainability of a writ petition under Article 226 again came up before the Apex Court. The facts before the Apex Court whether that the appellant was an advocate by profession who served as a panel counsel for the Canara Bank. Pursuant to a legal opinion rendered by the appellant, the bank considered it necessary not only to remove the name of the appellant from its panel of advocates but also to include his name in what is called the caution list maintained by the Indian Banks Association as per the guidelines in the circulars issued by the RBI. The writ petition instituted by the appellant challenging the aforesaid action of the bank and the IBA came to be dismissed on the ground that IBA is not a state under Article 12 of the Constitution. The Apex Court while deciding the matter held that the maintainability of a petition under Articles 32 and 226 of the Constitution depended primarily upon who the respondent was. This focus has gradually shifted from formal character of the body against whom the relief is sought to the nature of the function performed, the source of power exercised and the effect of the impugned action on legally protected rights. Article 226 is not confined merely to statutory authorities or instrumentalities of the state falling within Article 12. The “expression” any person or “authority” occurring in Article 226 has consistently received a wider and more liberal interpretation. The Apex Court held that the powers under Article 226 extends even to bodies discharging the public duties, irrespective of whether such duties arise from statute or otherwise. What is material is the existence of a public law element. The earlier precedents of the Apex Court including S. Shobha (Supra) was considered by the Apex Court in this judgment.
A careful reading of the judgments reflect that it is the function test which has to be applied to decide whether an entity is amenable to the writ jurisdiction or not. Where the entity is entrusted with performance of public duty and has failed to perform such duty and thereby a constitutional or legal rights of the aggrieved person is affected, then notwithstanding the said entity being not an authority under Article 12, writ may lie on the given facts and circumstances of the case.
Coming to the facts of the present case, the petitioner is an employee of the said respondent company and had initially approached this court by filing a writ petition being aggrieved by the order of transfer, which according to the petitioner was in violation of the transfer policy of the respondent authority. It is under these circumstances that this court in the first writ petition filed by the petitioner being WP(C) No. 3513 of 2025, by order dated 23.06.2025 had initially granted an interim order. Subsequently, the said writ petition was withdrawn and the petitioner approached the Labour Court by filing appropriate application. The learned Labour Court, Kamrup(M) by order dated 29.07.2025 passed in Misc Case No. 3/2025 granted an interim order staying the said order of transfer. This was sought to be vacated or modified by the respondent company and which was rejected by the Labour Court, Kamrup(M). This came to be assailed by the respondent company by filing WP(C) No. 4693 of 2025. The basic challenge in the said writ petition is that the respondent (namely the petitioner herein) is not a workman defined under Section 2 of the Act of Industrial Disputes Act of 1947 and also that the application for challenge of a transfer order is not an industrial dispute under the provisions of the said Act. Therefore, the said application was not maintainable. The said application filed by the applicant, namely the respondent herein, was rejected by the Labour Court, and the interim order was directed to be continued till the next date. Under such circumstances, the respondent as a writ petitioner approached this court by filing the said writ petition being WP(C) No. 4693 of 2025. Upon consideration of the matter in its entirety and by placing reliance on the judgment of the Apex Court in Rajasthan State Road Transport Corporation Vs. Krishnakant and others7, the Coordinate Bench allowed the writ petition by holding that the respondent therein, namely the petitioner herein, could not have approached the Labour Court under Section 2A of the Act of. 1947. The writ petition therefore came to be disposed of with the following observations:
“(i)The proceedings being Case U/S 2A No.02/2025 pending before the learned Labour Court, Kamrup (M) at Guwahati stands set aside and quashed.
(ii)All other miscellaneous proceedings including Case U/S 2A No.02/2025 as well as the orders so passed in the said proceedings stands set aside and quashed.
(iii)The judgment passed in the instant proceedings however shall not preclude the Petitioner to approach the competent Court of Civil Jurisdiction wherein the grievances of the Petitioner can be redressed.
(iv)Mr. K. N. Choudhury, the learned Senior counsel submitted that the Petitioner is enjoying certain interim directions and a cushion period of 10 days be provided to the Petitioner so that the Petitioner can approach the competent Civil Court. Taking into account that the Petitioner has been enjoying certain interim protections, this Court observes that the status quo as on today shall be maintained for a period of 10 days from today i.e. up till 08.02.2026.
(v)This Court further observes that the direction to maintain status quo for a period of 10 days, however, shall not influence the competent Civil Court in deciding whether the Petitioner is entitled to any interim protection. The appropriate forum shall decide as regards the entitlement of the Respondent No.2 to any interim directions on its merits, uninfluenced by the observations made herein above.”
It is seen that no further appeal or review against the said order was carried on by the petitioner herein. It is further seen that the Co-ordinate Bench while disposing of the writ petition directed the petitioner to approach the competent court of civil jurisdiction wherein the grievances of the petitioner could be redressed. Perhaps what the Coordinate Bench intended to say was that the respondent therein, who was aggrieved by the transfer order which was assailed in the Labour Court, may approach the competent civil court for redressal of the grievances. It was further recorded that the counsel appearing for the respondent therein, namely the petitioner herein, was permitted a cushion period of 10 days so that the said party can approach the competent Civil court and considering these such submissions made, the Co-ordinate bench directed the status quo to be maintained from the date of the order till 08.02.2026. It was further directed that the direction to maintain status quo for a period of 10 days shall not influence the competent civil court in deciding whether the petitioner is entitled to any interim protection.
Thereafter, this writ petition came to be filed on 06.02.2026 and the matter had come up before this court for the first time on 16.02.2026. It is therefore clear that in WP(C) No. 4693 of 2025 filed by the respondent as a writ petitioner, which came to be disposed of on 29.01.2026, where the direction of the Co-ordinate Bench to the respondent therein, namely the writ petitioner herein, was to approach the competent civil court and further a cushion period for 10 days on the request of the counsel for the employee was granted by the court till 08.02.2026.
However, instead of approaching the civil court, the employee has presently approached this court by filing this writ petition assailing again the orders of transfer being 24.04.2025 and 25.06.2025. The Coordinate Bench did not decide on the question of whether the present respondent would be amenable to a writ jurisdiction, inasmuch as the said writ petition being WP(C) No. 4693 of 2025 was filed by the present respondent assailing the orders passed by the Labour Court suspending the order of transfer to the employee, namely the present writ petitioner. Therefore, this question perhaps was not urged or raised before the Co-ordinate Bench and consequently the same was not required to be decided and/or no findings on this count are arrived at by the Co-ordinate Bench.
In the present proceedings, this question has been raised primarily on the ground that there is a substantial shareholding by the LICI, being a state under Article 12 as a shareholder in the respondent company and also that the LICI has deep and pervasive control over the functioning and the administration of the respondent company and thereby the respondent company is also a state or an agency of the state under Article 12 and further, since the order of transfer is in violation of the transfer and posting guidelines, it has violated the constitutional rights of the writ petitioner under Article 14 and 16. The writ petitioner therefore, prays for appropriate writ/direction or order for setting aside the impugned transfer orders in the present proceedings.
As have been discussed above that for deciding the question of amenability to writ jurisdiction, it is essentially necessary to determine the nature of function performed by the entity and the source of power exercised and the effect of the impugned action on any legally protected right. The prayer of the petitioner for issuance of a writ cannot be thrown out only on the aspect of the fact that the respondent may not be strictly speaking a state within the meaning of Article 12 without examining the functions it is required to perform and the effect of the impugned action on the legally protected rights of the writ petitioner. However, there is no dispute on facts that the transfer and posting of the employees under the respondent is not governed by any government notification or office memorandum or even by the RBI directives. These transfer and posting guidelines are framed by the company for transfer and posting of their employees like the writ petitioner. The claim of the writ petitioner that the petitioner's transfer from Guwahati area as a Cluster Head to Kolkata as a Credit Manager is a reduction in rank is an issue which will require examination of the various particulars and the salary structure, the nature of the duties assigned to each such employees in the capacity as Cluster Head as compared to that of Credit Manager. Mere identical cadre by itself may not be an indication that the functioning of an employee has not been altered if upon deeper examination it is found that the responsibilities and the functioning of the employee in its capacity as Cluster Head was substantially wider and varied than that of a Credit Manager. Therefore, such examination would be necessary to arrive at such finding for which proper evidence will have to be led by both the parties. The petitioner has already been directed to approach the civil court by order dated 29.01.2026 and for which a cushion period of ten days was granted from the date of the Judgment of the order till 08.02.2026. No appeal or review against that order has been preferred by the writ petitioner. No explanation has been placed before this Court as to why the writ petitioner did not approach the civil court in deference to the directions/liberty granted by the coordinate bench. It is also seen from the order passed by the Co-ordinate Bench that the cushion period has been granted on the prayer of the counsel appearing for the petitioner, meaning thereby that they have accepted the directions contained in the order coupled with the fact that this order has not been assailed in any higher forum.
Therefore, where there is a challenge of service conditions in respect of an employee without there being any claim for violation of any legally protected right, mere reference to Articles 14 and 16 will not be sufficient to justify issuance of a writ in matters concerning service conditions like transfer. The petitioner has also been not able to satisfy this Court that there was any public duty cast upon the respondent which it had failed or neglected to perform and thereby infringed upon any legal and/or constitutional right of the writ petitioner. It is not enough that merely because an entity is amenable to writ jurisdiction a writ must issue. Prerogative writs are issued by constitutional Courts to compel an authority to perform its public duty which it is otherwise duty to perform if required in law. Unless it is shown that the entity is required under any law to perform any public duty, a Constitutional Court will refrain from issuing a writ. The question of whether any entity is amenable to writ jurisdiction cannot be answered by resorting to any cut and dried formula. The nature of the functions performed and whether any public duty is required to performed by the entity is central while deciding the question of amenability to writ jurisdiction. The particulars necessary to arrive at such a finding will require precise facts which are not available before this court. It will require evidence to be led by both the parties for which the civil court will be the appropriate forum.
Under such circumstances, while this Court is persuaded to agree with views of the Kerela High Court that a writ is maintainable against the respondent, it is disinclined to interfere with the impugned orders passed by the respondent company as by the earlier order by a Coordinate Bench dated 29.01.2026 passed in WP(C) No. 4693/2025 parties have already been relegated to the civil Court. The petitioner is at liberty to approach the Civil Court for which the benefit of the interim order passed by this Court is extended for a further period of 15 days from the date of the judgment.
Accordingly, the writ petition stands disposed of in terms of the above. No orders as to cost.