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RADHEY SHYAM MISHRA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Radhey Shyam Mishra v. State Of U.P. And Others - WRIT - A No. 23401 of 2006 [2006] RD-AH 8618 (28 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 52

Civil Misc. Writ Petition No. 23401 of 2006

Radhey Shyam Mishra

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner is an employee of Hind Lamps Limited, Shikohabad, District Firozabad. In lieu of his being employee of the aforementioned unit, petitioner has been allotted residential premises. Services of petitioner were sought to be dispensed with w.e.f. 04.09.2001. Petitioner has contended that he approached the employer for settlement of dispute but no response was received, as such application under Section 2-A of the U.P. Industrial Disputes Act, 1947 was moved before the Conciliation Officer/Deputy Labour Commissioner, Agra Region, Agra on 20.09.2001. The plea taken before the Conciliation Officer/Deputy Labour Commissioner, Agra Region, Agra was to the effect that petitioner was workman and in this connection documentary evidence was sought to be filed regarding pay scale, duties and term of employment. The Deputy Labour Commissioner, on 19.08.2002 concluded that petitioner did not fall within the definition of 'workman' as contained under Section 2 (z) of the U.P. Industrial Disputes Act, 1947. As the Deputy Labour Commissioner refused to refer the dispute, writ petition No.43580 of 2002 was filed before this Court by the petitioner, and this Court on 10.12.2004 quashed the order dated 19.08.2002 passed by Deputy Labour Commissioner, Agra and directed to decide the application of the petitioner afresh, in accordance with law, and in the light of the observations made in the judgment. Thereafter, reference was made by the Deputy Labour Commissioner on 28.06.2005. It has been contended that proceeding commenced before the Labour Court and written statement was filed. Writ petition No.68848 of 2005 had been filed before this Court questioning the validity of the reference itself that was made on 28.06.2005. This Court stayed further proceeding. In between petitioner has been sought to be superannuated with effect from 30.04.2006 and the residential premises has also been asked to be vacated. At this juncture present writ petition has been filed seeking a writ of mandamus directing the respondents to treat the age of retirement of petitioner as 06.09.2006 and further to restrain them from evicting the petitioner form residential premises allotted to him.

On presentation of writ petition, the first question posed to Sri Arvind Srivastava, learned counsel for the petitioner, was to the effect as to how writ petition is maintainable against M/S Hind Lamps Limited, which is a company incorporated under Indian Companies Act, 1956, inasmuch as, it is not State within the scope and ambit of Article 12 of the Constitution of  India and specialty when no violation has been complained of any statutory provision. Sri Arvind Srivastav has placed reliance on a judgment of Hon'ble Apex Court in the case of U.P. State  Cooperative Land Development Bank Ltd. vs. Chandra Bhan Dubey (1999) 1 SCC 741. Relevant portion contained in paragraph 27 of the judgment is quoted below:

"27............................... "Person" under Section 2 (42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is the fountain head of all the statutes. when the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction. when any citizen of person is wronged, the High court will step in to protest him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual m. right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court  has laid down certain guidelines and self imposed limitations have been put there subject to which  the high Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. the High Court does not interfere when an equally efficacious  alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. a party may not be allowed to bypass the normal channel of civil and criminal litigation. the High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226."

In the the judgment on which reliance has been placed, it has been noticed that power conferred on High Court under Article 226 of the constitution is certainly vast, but the Hon'ble Apex Court  has laid down certain guidelines and self imposed limitations have been put there subject to which  the High Court should exercise its jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court should not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226. This judgment of Hon'ble Apex Court has been considered in its subsequent judgment in the case of Federal Bank Ltd. vs. Sagar Thomas AIR 2003 SC 4325, reiterating the principles laid down in the case of Ajai Hasia, AIR 1981 SC 987, that writ petition under Article 226 of the Constitution is maintainable against (i) Central Government/State Government (ii) Authority in terms of Article 12 of the Constitution  (iii) a Statutory Body (iv) an instrumentality or agency of State (v) a company which is financed and owned by State (vi) a private body run substantially on State funding (vii) a private body discharging public duty or positive obligation of public nature (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function. In the said judgment Hon'ble Apex Court has mentioned that private companies carrying on business or manufacturing, are under check under the provisions of Companies Act, and the consideration behind this is that company itself may not sink because of its own mismanagement or the interest of share holders or people may not be jeopardized for that reason. State has no interest to control the affairs and management of private company and carrying on business remains private activity. Private companies normally are not amenable to writ jurisdiction under Article 226 of the Constitution, but in certain circumstances a writ may be issued to private bodies and persons, where there are statutory provisions which need to be complied with by all concerned including private companies.    In the present case, petitioner has failed to show any violation of any statutory Rules or Regulations, and further fails to pass the test qua the maintainability of writ petition, as laid down in the case of Ajai Hasia (supra). Consequently, present writ petition is clearly not maintainable, as such it is dismissed.

No order as to costs.

28.04.2006

SRY.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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