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National Seeds Corporation Employee's Union and Anr. Vs. National Seeds Corporation, New Delhi (08.02.1972 - DELHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 27 of 1972
Judge
Reported inAIR1972Delhi292; 9(1973)DLT89b; (1973)ILLJ254Del
ActsConstitution of India - Article 226
AppellantNational Seeds Corporation Employee's Union and Anr.
RespondentNational Seeds Corporation, New Delhi
Advocates: B.S. Charya and; K.C. Sharma, Advs
Cases ReferredPraga Tools Corporation v. C. V. Imanual
Excerpt:
.....a writ of mandamus against the respondent-corporation directing it to restore the enhanced house-rent allowance which the employees of the respondent were getting by virtue of a resolution passed at the 45th meeting of the board of directors of the respondent-corporation on 27th september, 1971. the benefit of the enhanced house-rent allowance was made applicable to the employees of the respondent w.e.f. 1st october, 1971. this order was revoked by an office order no. 741 (part i) issued on 1st january, 1972. petitioners have challenged the order dated 1-1-1972 as being arbitrary, illegal, capricious, against the principles of natural justice and passed in violation of the provisions of section 9a of the industrial disputes act, 1947. it was contended on behalf of the respondent that..........a writ of mandamus against the respondent-corporation directing it to restore the enhanced house-rent allowance which the employees of the respondent were getting by virtue of a resolution passed at the 45th meeting of the board of directors of the respondent-corporation on 27th september, 1971. the benefit of the enhanced houserent allowance was made applicable to the employees of the respondent w.e.f. 1st october, 1971. this order was revoked by an office order no. 741 (part-i) issued on 1st january, 1972. aggrieved by the said order of revocation the petitioners have come to this court and challenged the order dated 1st january, 1972 as being arbitrary, illegal, capricious, against the principles of a natural justice and passed in violation of the provisions of section 9a of the.....
Judgment:

Prakash Narain, J.

(1) This petition under Article 226 of the Constitution of India has been filed by two petitioners, namely, The National Seeds Corporation Employees' Union through its General Secretary and Shri J. P. Singh, the General Secretary of the first petitioner against the National Seeds Corporation, F-44/A, South Extension, Part-1, New Delhi through its Chairman. By this petition a prayer is made for the issuance of a writ of mandamus against the respondent-corporation directing it to restore the enhanced house-rent allowance which the employees of the respondent were getting by virtue of a resolution passed at the 45th meeting of the Board of Directors of the respondent-corporation on 27th September, 1971. The benefit of the enhanced houserent allowance was made applicable to the employees of the respondent w.e.f. 1st October, 1971. This order was revoked by an office order No. 741 (Part-I) issued on 1st January, 1972. Aggrieved by the said order of revocation the petitioners have come to this court and challenged the order dated 1st January, 1972 as being arbitrary, illegal, capricious, against the principles of A natural justice and passed in violation of the provisions of Section 9A of the Industrial Disputes Act, 1947.

(2) According to the petitioners the payment of house-rent allowance is compulsory in terms of the rules of service applicable to the employees of the respondent and it is contended that the house-rent allowance forms part of the wages as defined by the Industrial Disputes Act, 1947. The contention is that inasmuch as the terms of service of the employees of the respondent have been changed to their detriment without the respondent complying with the provisions of the Industrial Disputes Act, 1947, the said order dated 1st January, 1972 be struck down and a mandamus be issued to the respondent directing it to restore the payment of house-rent allowance at the enhanced rate.

(3) Notice to show cause why the petition should not be admitted was issued to the respondent which filed a reply in opposition to the admission of the writ petition. The petitioners filed a rejoinder thereto. In the reply filed on behalf of the respondent it was contended that the respondent being a company registered under the Companies Act, 1956, no writ of mandamus could be issued to it; that inasmuch as the respondent had adopted all Government rules and Regulations including Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary) Rules, Revised Leave Rules, Civil Services Regulations etc., the provisions of Section 9A of the Industrial Disputes Act would not be attracted in the case of the respondent-, that assuming that Section 9A of the Industrial Disputes Act is attracted to the facts of the case, the petitioners have the alternative remedy of raising an industrial dispute and so, should not be allowed to invoke the writ jurisdiction of the High Court; that house-rent allowance is being paid to the employees of the respondent but the enhanced house-rent allowance adopted by resolution No. 16 in the 45th meeting of the Board of Directors of the respondent and held on 27th September, 1971, is to remain inoperative in view of the grave situation created in the country by influx of refugees from Bangla Desh and need to conserve money; the respondent being a public-sector enterprise has to follow instructions received from the Government of India from time to time in various matters particularly, with regard to finance; that the enhanced house-rent allowance was agreed to also in view of Governmental instructions and has been kept in abeyance again in view of Governmental instructions; that the order revoking the earlier decision to increase the house-rent allowance was neither arbitrary nor illegal nor capricious nor against the principles of natural justice; and that the house-rent 5-1 H. C. Delhi/72 allowance was a fringe benefit and not wages within the meaning of Industrial Disputes Act, 1947.

(4) In the rejoinder filed by the petitioners their earlier contentions were reiterated and it was submitted that raising of industrial dispute was not an adequate alternative remedy available to the petitioners inasmuch as in those proceedings the aggrieved workman would be required to move the Conciliation Officer first which proceedings will take a lot of time and if they fail then only could the concerned Government make a notification for making a reference of the disputes to the appropriate court for adjudication. The adjudication proceedings will again take time and even if an award is given in favor of the workmen it will become effective only on publication which may take considerable time.

(5) The petitioners also moved an application for an amendment of the petition to which also the respondent filed a reply. The main plank in the proposed amended petition was to get a declaration that the house-rent allowance was not a fringe benefit and that without complying with the mandatory provisions of Section 9A of the Industrial Disputes Act the enhanced house-rent allowance once given could not be withdrawn. We did not allow the original petition to be amended but heard the learned counsel both on the main petition and the proposed amended petition.

(6) Article 226 of the Constitution, under which the jurisdiction of this court has been invoked by the petitioners reads as under :-

'226(1)Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part Iii and for any other purpose. (IA) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, not- withstanding that the seat of such Government or authority or the residence of such person is not within those territories (2) The power conferred on a High Court by clause (1) or clause (IA) shall not. be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.'

(7) The first contention of Mr. B. S. Charya, the learned counsel for the petitioners, is that the High Court under Article 226 of the Constitution has power to issue to any person or authority orders or writs including writs in the nature of mandamus. Any person would include even a company registered under the Companies Act. Prerogative writs mentioned in both Article 32 and Article 226 of the Constitution will only issue in accordance with well established principles both in England and in India. 'Any person' in Article 226 only means any person to whom, according to well-established principles, a writ would issue. It is only against bodies having legal authority to determine questions effecting the rights of subjects that the jurisdiction of the High Court under Article 226 can be invoked. Article 226 of the Constitution cannot be utilised to grant relief against purely private persons who have no statutory or legal existence. Similarly, writs would not normally be issued to organisations like companies or cooperative societies. Even, assuming that writs, directions or orders can issue to private persons or organisations like companies the same will not normally be issued where another remedy is open.

(8) In the present case the petitioners seek issue of a mandamus to the respondent on the ground that the enhanced house-rent allowance has been withdrawn without complying with the mandatory provisions of Section 9A of the Industrial Disputes Act, 1947. This section reads as under:-

'NOemployer, who proposes to effect any change in the conditions , service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,- (a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty-one days of giving such notice: Provided that no notice shall be required for effecting any such change- (a) where the change is effected in pursuance of any settlement, award or decision of the Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950; or (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in defense Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.'

(9) Mandamus is issued on certain principles which are where a person. Corporation or Tribunal is required to perform any public duty or where it is required to perform any statutory duty imposed upon the respondent. A mandamus is in the nature of a command issuing from the High Court directing any person. Corporation or inferior court or Tribunal or authority to do a particular act or thing which that person or authority etc. is under a legal duty to perform or do. It is a coercive writ and not a corrective writ... thereforee what has to be seen is whether in the present case, even if it be assumed that Section 9A of the Industrial Disputes Act is attracted, a mandamus can issue to the respondent to comply with it. Assuming that the enhanced house- rent allowance would be 'wages' within the meaning of the Industrial Disputes Act, Section 9A of that Act prohibits an employer to effect any changes in the conditions of service applicable to any workman in respect of matters specified in the Fourth Schedule of the Act without first giving the requisite notice. In that view of the matter withdrawal of the enhanced house-rent allowance would be a matter falling within the Fourth Schedule & a change in the wages would be a change in the conditions of service which may be a matter referable as an industrial dispute. Mr. Charya relied on a decision of the Supreme Court of India in State of Bombay and others v. Hospital Mazdoor Sabha and others. (1960) 1 L.L.J. 251C, that inasmuch as Section 9A is mandatory a mandamus can issue to the respondent to first comply with its provisions before withdrawing the enhanced house-rent allowance. The decision relied upon may help the petitioners to urge that Section 9A was mandatory but is of no avail to the petitioners to urge that a mandamus be issued for the compliance of Section 9A.

(10) The learned counsel for the petitioners also relied on several other decisions which we will notice one by one. In Madan Mohan Sen Gupta and another v. State of West Bengal and others, : AIR1966Cal23 , it was held that existence of an alternative remedy is not always a sufficient reason for refusing a party a quick relief by a writ. The contention there was whether Section 86 of the Bengal Co-operative Societies Act was a bar to the maintainability of a writ petition against the co-operative society's managing body to forbear from holding the election. That was a petition mainly directed against the State Government and the Registrar of Cooperative Societies for a direction that the Registrar should see that the provisions of the Co-operative Societies Act and the Rules were strictly followed. A The case, thereforee, is of little help here. In Prafulla Chandra Sarma and others v. Mis. Oil India Ltd. Dllliajan and others, (1971), I L.L.J. 2780, a Bench of the Assam and Nagaland High Court was concerned with the dismissal of an employee by M/s. Oil India Ltd. in violation of the standing orders under the Industrial Disputes Act applicable to the employees of that company. Pathak, J. delivering the judgment of the Bench held that although the respondent-company was a non-statutory body and one incorporated under the Companies Act and there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus yet inasmuch as the company was rendering a public utility service in which the public had a general interest it was doing some public duty in the interest of public and so, a mandamus could be issued against the company directing it to perform some statutory duty or public duty even if the obligation of the company to its employees may not be in the nature of public utility service but it was clear that relations between the company and its employees were governed by standing orders and it being a public utility service it performed a' public duty and so. was amenable to writ of mandamus. We are in respectful disagreement with this view. Indeed, as has been laid down by the Supreme Court in Praga Tools Corporation v. C. V. Imanual, : (1969)IILLJ479SC : 'No doubt. Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus. mandamus etc. or any of them for the enforcement of any of the rights conferred by Part Iii of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.

(11) thereforee the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public, official or an official body. Mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfillling public responsibilities.

(12) The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, thereforee, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.'

(13) If the view taken by Pathak, J. was to be adopted almost any industry could be brought into the category of its performing a public duty for all industries, by and large, perform some public utility service. The real test is whether the company has failed to perform any duty imposed upon it by the statute by which it is created for the purpose of fulfillling public responsibilities. In the present case the respondent admittedly, is a company incorporated under the Companies Act, 1956 and has not been either created by a statute nor has any statutory duty been cast upon it by its constitution.

(14) In Soma Kumar Chatterjee and another v. District Signal Tele-Communication Engineer and another, 1970 2 L.L.J. 179 a Bench of the Patna High Court issued a mandamus against government authority to comply with the statutory provision of Section 25F of the Industrial Disputes Act. This was also a case where a statutory authority was commanded to do a certain act which under a statute it is bound to do.

(15) In Abani Bhusan bids was v. Hindusthan Cables Ltd., Burdwan and others Air 1968 Cal 1240, it was held that no relief under Article 226 of the Constitution could be granted for violation of standing orders because the Industrial Employment (Standing Orders) Act is a self-contained code and it itself provides for an adequate remedy.

(16) The result is that it cannot be said that the alleged non-compliance of Section 9A of the Industrial Disputes Act by the respondent entitles the petitioners to claim that a mandamus be issued to the respondent-company to comply with the said provisions. The statute merely lays down the law and the procedure to be followed before effecting any change in the conditions of service of workmen. There is no statutory obligation on a private employer, like a company incorporated under the Companies Act, to follow Section 9A in the manner in which, there would be a statutory obligation on a company to comply with the provisions of statute which brings it into existence. The alleged violation of Section 9A may entitle the petitioners to raise an industrial dispute but we are not concerned with that aspect of the case. The result is that the petition is dismissed.


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