West Dinajpur Spinning Mills Ltd. vs Gautam Deb and Others

Satyabrata Sinha, J.—This appeal is directed against a judgment and order dated 22.2.96 passed by a learned single Judge of this court whereby and whereunder the writ application filed by the writ petitioners claiming equal pay for equal work, had been allowed. The writ petitioners, who are Fitters, in the aforementioned writ application sought for issuance of a writ of or in the nature of Mandamus directing the respondents to take steps for granting scale in Rs. 380-910 with effect from their date of appointment to the post of Fitter of respective dates with all arrears, increments and other service benefits attached thereto, who are similarly circumstanced with the Fitters attached to other Government institutions.

With a view to maintain the writ application, the writ petitioners merely stated;

"That the Mills being a Government of West Bengal undertaking the employees attached to the said Mills should be treated as a Government Employee and are entitled to get the same scale of pay as enjoyed by the Government Employees as Fitter."

In the affidavit in opposition, the appellants had categorically stated that the appellant does not discharge any sovereign functions, nor the state has any deep or pervasive control over its affairs. The writ petitioners/respondents in their affidavit-in-reply, inter alia, stated :

(a) Although no direct grant-in aid has been given by the State of West Bengal, it receives financial aid by way of loan from the Industrial Development Bank of India and other financial Corporations of India. It also obtained unsecured loan from the Government of West Bengal.

(b) The majority shares are held by the West Bengal Handloom Power Development Corporation Limited.

(c) The Government has the liberty to appoint 3 Directors and to remove them from office. The Directors can appoint a Chairman and Managing Director with the approval of the Government. The Directors may, also with the approval of the Government, appoint Financial Adviser and Chief Accounts Officer.

Only on the aforementioned basis, the writ petitioner/respondents contended that the appellant company is a state within the meaning of Article 12 of the Constitution of India.

The learned Trial Judge, without discussing the respective pleadings of the parties merely held on the basis of a Division Bench decision of this court in Kalyani Spinning Mills Ltd. and others Vs. Smt. Sudha Sashikant Shroff and another, that the appellant is a state within the meaning of Article 12 of the Constitution of India. Unfortunately, the learned trial Judge did not consider the basic question that with a view to be a state within the meaning of Article 12 of the Constitution of India, the authority concerned not only must have substantial financial assistance from the state, but also the state must have deep and pervasive control over its affairs. The learned trial Judge has also failed to take into consideration the statements made by the appellants herein that they do not perform any sovereign function nor do they discharge any public functions or duties, Mr. Dhole, however, has placed strong reliance upon a decision of the Apex Court in Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, wherein a Division Bench Comprising of two learned Judge, inter alia, took the fact of the matter in consideration and held :

"The objects of the society were not Governmental business but were certainly the aspects which were expected to equip Members of Parliament and the State Legislatures with the requisite knowledge and experience of for better functioning. Many of the objects adopted by the society were not confined to the House of Parliament and were intended to have an impact on society at large. The Memorandum of the Society permitted acceptance of gifts, donations and subscriptions. There is material to show that the Ford Foundation, a US based Trust, had extended support for some time. Undoubtedly, the annual contribution from the Government has been substantial and it would not be wrong to say that they perhaps constitute the main source of funding. Yet some money has been coming from other sources. In later years, foreign funding came to be regulated and, therefore, it became necessary to provide that without government clearance, like any other institution, IPCS was not to receive foreign donations. There is no material to show that the society was not entitled to receive contributions from any indigenous source without Government sanction. Since Government money has been coming, the usual conditions attached to Government grants have been applied and enforced."

The said decision thus has no application in the instant case. In Kalyani Spinning Mills (Supra), this court was concerned with a contract matter. It true that the writ petition was entertained, but the question as to how and in what manner, the said Kalyani Spinning Mills answers the description of other authorities within the meaning of Article 12 of the Constitution of India, had not been discussed. The learned Judges merely observed that they have gone through the Memorandum and Articles of Association of the Company, it was amendable to the writ jurisdiction of the court within the extended meaning of Article 12 of the Constitution of India. Unfortunately, the learned counsel for the parties refrained in bringing to the notice of the learned Judges the earlier Division Bench decisions of this court in Anupam Ghosh v. Union of India & Ors. reported in 1991(2) CHN 451, Director, Indian Association for the Cultivation of Science, Jadavpur v. Ashoke Kumar Roy & Ors. reported in 1992(1) CLJ 319 , as also the celebrated judgement of the Supreme Court in Chander Mohan Khanna Vs. The National Council of Educational Research and Training and other[OVERRULED],

A Division Bench of this court in Anupam Ghosh (supra) has clearly held that even if a company is set up by the state which does not exercise any monopoly and is merely an industry, having competitors in business, the same would not be a State within the meaning of Article 12 of the Constitution of India. In the facts of this case also, it is evident that the appellant company and the said Kalyani Spinning Mills are merely industries having been financed by the state or state owned corporations. They do not perform any statutory or public law functions, nor do they discharge any sovereign functions. They also do not exercise any monopoly. In that situation, keeping in view the aforementioned decisions, and particularly the decision of the Apex court in Chander Mohan Khanna (supra), there can not be any doubt whatsoever that the decision of the Division Bench in Kalyani Spinning Mills (supra) had been rendered per in quirium and thus was not a binding Precedent. The aforesaid companies are engaged in commercial activities. This aspect of the matter has also been recently consider (sic) by the Apex Court in many decisions, suffice it to point out that in General Manager, Telecom v. S. Srinivasa Rao, reported in AIR 8998 SC 656. the Apex Court has held that even the Telecom Department of Union of India is also engaged in commercial activity and had not been discharging any sovereign functions of the state and thus answered the description of industry as defined in Section 2(j) of the Industrial Disputes Act, 1947. Even, in All India Radio v. Satosh Kumar, reported in AIR 1998 SC 941, although broadcasting is a Governmental function, keeping in view the fact that they carry on commercial activities for profit by getting commercial advertisements for telecasting or broadcasting, it has been held that functions (sic) on by them cannot be said to be purely sovereign in nature. Yet again, in Rajkumur Sander v. Union of India, reported in 1999(1) CLJ 125 it has clearly been held that Base Institute is not a state within the meaning of Article 2 of the Constitution of India. Furthermore, in the writ application, the disputed question of fact winch has arisen is as to whether the duties and functions of the writ petitioners are same and similar to that of the fitters in other Government undertakings, unless submitted could not have been gone into in a writ application, and in fact the learned trial Judge had not taken the pains to arrive at such a finding. The doctrine of equal pay for equal work as adumbrated under Article 39(d) read with Article 14 of the Constitution of India cannot be applied in the facts and circumstances of this case. The doctrine of equal pay for equal work can only be applied when a court of law comes to a clear finding that the duties performed by such employees are at par in all respects, including educational qualification, experience, responsibility etc. so as to enable then to get the said benefit. As such a question could not have been gone into in the writ petition keeping in view the fact that the appellants herein had raised a serious dispute as regards the nature of functions of the writ petitioners vis-a-vis the Fitters in other Government institutions, we are of the opinion that the writ petition should not have been entertained and the writ petitioners should have been directed to avail their alternative remedy by raising an for industrial dispute.

Before parting with this case, however, we may record that we have not entered into the merit of the matter and as such, to the event an industrial dispute is raised, the Tribunal concerned shall determine the questions raised before it on their own merits.

For the reasons aforementioned the impugned judgment cannot be upheld, and the same is set aside accordingly. The appeal is allowed with the aforementioned direction. Urgent xerox certified copy be supplied on priority basis.

S.N. Bhattacharjee, J.

I agree.