Eveready Industries Employees vs State of J&K and Others

Syed BashirudDin, J.—In this LPA, judgment dated: 07041997 of Learned Single Judge of this court in Service Writ Petition No.

5591/1996, captioned Eveready Industries Employees Union Vs. State of Jammu and Kashmir and others, is under challenge. The Appeal has

arisen in the following circumstances:

Eveready Industries Employees Union (hereinafter for short Union/Petitioner) filed a writ, seeking directions against Eveready Industries India

Ltd. and General Manager, Union Carbide Pvt. Ltd. (Respondent 2 and 3) in the nature of Mandamus, to pay wages/salary to the

employeesworkmen of the Respondent2, whose attendance stood marked from April 1996 at the factory site pursuant to the notice of the

Management and to continue the employees of the factory on its rolls uninterruptedly in future and prayed for further directions against respondent

No. 1, State of Jammu and Kashmir, for taking appropriate action against the other respondents for failing to pay wages/salary to the

workmen/employees of the factory from April 1996 and for ensuring continuance in manufacturing operations in the factory at Khonmoh, Srinagar

and for payment of wages to the workmen/employees on regular basis and punctually.

Petitioners are workmen/employees of Eveready Industries India Ltd. formerly known as Union Carbide. Petitioners were employed at its unit

at Industrial Estate Khonmoh. Eveready Industries India Ltd. is a public limited Coy. incorporated under the provisions of Companies Act, 1956

with its Registered Office at 1Middleton Street, Calcutta. The unit at Khonmoh was established in 1983. It was engaged in manufacture of the dry

cell Batteries. The commercial production started in the factory in December, 1983. In 1991, even in wotherst and adverse conditions, the

Khonmoh Unit of the Industry was functioning and though at some stage respondent 2 and 3 requested respondent 1, State of Jammu and

Kashmir for closure of the Unit, but respondent 1, did not respond and refused to effect closure of the Unit. For that a separate writ has been filed

at Jammu. The authority refused to act under the Payment of Wages Act on being approached for the reason that the income of each of the

employees of the Union being over Rs. 1000/. The authority under the Payment of Wages Act has no authority and jurisdiction to entertain any

such complaint or to redress any such grievance(s). With the dismissal of the petition by the authority under the Payment of Wages Act, Union filed

the writ claiming that though Respondent 2 is not an instrumentality or authority or limb of the State within the meaning of Art. 12 of the

Constitution, but a(£ the same, it is amenable to writ jurisdiction. The employees/workmen are regularly working in the factory premises and

marking their attendance. They have been paid salary uninterruptedly till ending March, 1996. Despite marking their attendance and being regularly

present in the factory premises, they are not being paid after April, 1996 on one or other pretext. The attendance is being marked pursuant to a

notice of the Management, advising the employees to mark the attendance of workmen and to clear absenteeism, if any, in the same month

(AnnexureB). The information as per AnnexureB was required to be fed to Headquarters at Delhi.

The Hon'ble Single Bench, while issuing the writ in part directed the State to perform its duties and to proceed against Respondent 2 and 3,

inaccordance with law and take appropriate steps for nonpayment of wages to the petitioners/workmen from April 1996, within a period of ninety

days, but rejected prayer to the extent of seeking mandamus against Respondent 2 and 3.

We have heard the counsel for the parties. Perused the record and considered the matter.

The learned counsel for the petitioner submits that the Respondent 2 and 3 though not the instrumentality of the State within the meaning of

Article 12 of the Constitution, are still amenable to writ jurisdiction of this court in so far as the respondents are performing public duties. Even, if

the respondents 2 and 3 are principally engaged in manufacture of Dry Cell Batteries as a public Ltd. Coy, they cannot escape the consequences

of being amenable to the writ jurisdiction of the court on the ground that besides manufacturing the goods and earning profits, the Coy. is also

providing the jobs/ employment to its employees and thereby is performing the public duty. The counsel further submits that the issuance of

mandamus is not confined only to statutory authorities or instrumentalities of the State, it can be issued to any person or authority, of course, such

person or authority should be performing public duty, though imposition of such public duty need not be under a statute. He has referred to AIR

1989 SC 1607.

The counsel for the respondents submits that Eveready Industries Pvt. Ltd. represented by respondents 2 and 3, is a public Ltd. Coy, primarily

concerned with manufacturing of Dry Cell and the Coy. is not having any public duty or responsibility. No such public duty is imposed on it under

any statute. The Coy. is registered under Companies Act and is governed by the provisions of Company. As a separate legal entity it cannot be

said that the Eveready industries Private Ltd. is either a limb of the State or its instrumentality or authority. It is only a manufacturing Unit or the

Industry run by the Respondents. Its prime object is to make gains and earn profits. Generation and provisions of employment is a step forward in

the/process of manufacture of final goods in the form of finished goods. The labour force is paid for its contribution in manufacturing process

culminating in finished goods (dry cells) offered for sale in the market. In this case, like all other inputs, employed labour force contributes towards

production of the salable goods. For the work done and services rendered they earn and get wages. In the process they are not rendering any duty

of public nature, as is understood in proper context and appropriate settings. The Eveready Industries Private Ltd. can neither be said to be the

instrumentality nor authority nor agency of the State. It is not performing any public duty and responsibility so as to attract the writ jurisdiction of

the Court.

Section 103 of the State Constitution (corresponding to 226 of the Constitution of India) vests powers in the High Court to issue writs, orders

or directions to any Government, authority or person for the purpose of enforcement of any of the rights and for any other purpose. However, a

writ of mandamus can lie to secure the performance of a public or statutory duty provided the person applying for the writ has a sufficient interest

in the performance of such public or statutory duty. The person or authority saddled with statutory duty may or may not be a public official or an

official body.

The form of the body is immaterial. However, the nature of the duty imposed on the body is relevant. If a positive obligation owed by the public

authority to the aggrieved party exists, mandamus cannot be denied.

(See AIR 1969 SC 1306 and AIR 1989SC 1607).

The counsel for the petitioner has cited AIR 1989 SC 1607 for the preposition that the scope of the mandamus has made spectacular advance

in so far as Article 226 confers very wide powers on the High Court to issue prerogative writs to any person or authority for the enforcement of

not only the fundamental right, but also for any other purpose. The term authority given in Article 226 in contradiction to the use of the term in

Article 12 has a wider meaning. Article 12 is relevant only for purpose of fundamental right, whereas. Article 226 empowers High Court to issue

writs not only in case where fundamental rights are involved, but also in those cases where nonfundamental right arise. Therefore, the case at hand

need not be only judged from the stand point of Article 12, but should be viewed in the context of conferment of powers on High Court to issue a

writ of mandamus under Article 226. There can be hardly any other view of the matter, in view of the above established facts of the law of the

land.

In the authority cited by the Counsel (supra) it is observed:

If the rights are purely of a private character, no mandamus can issue. If the management of the college is purely a private body with no public

duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally

convenient remedy, mandamus cannot be denied.

In this case, the public trust and its trustees who were running Science College at Ahamadabad, got the College affiliated to the University of

Gujarat. The University teachers and teachers in the affiliated College were required to be paid the pay scales as recommended by the University

Grants Commission. The Vice Chancellor of the University gave award on the agreement of University and teachers association about certain

disputes and differences between the parties regarding grant of pay scale to the said teachers. The award was accepted by the Government and

the Government directed all the affiliated colleges to pay their teachers in terms of the award. The Trustpetitioner before the Apex Court instead of

granting pay to the teachers in terms of the award unilaterally closed down the college and terminated the services of the academic staff. The staff

did not challenge the termination, but sought mandamus against the Trust and its Trustees to pay the teachers their salary, allowances, the provident

fund and gratuity dues in accordance with the applicable rules. It was in these circumstances, that the Supreme Court upheld the judgment of the

Gujarat High Court in issuing mandamus to the Trust and its Trustees, notwithstanding, the argument that the Trust was not a statutory body and

thereby not amenable to the writ jurisdiction of the High Court

In terms, it was held that the Management of the affiliated college cannot be said to be a body with no public duty. It owed positive obligation

to the academic staff to pay salary and other benefits to the employees.

The case is clearly distinguishable from our case. The facts and circumstances of the two cases have no similarity. Unlike a college or an

educational institution, where by now law assumes that the public obligation exists on the management of such educational institution towards its

employees, irrespective of the form of such college of institution, in case of other bodies, persons of institution, it is public duty of such bodies,

persons or institutions that is decisive of the question whether such body, person or institution is amenable to writ jurisdiction of the High Court.

In AIR 1969 SC 1306, a Company (Praga Tools Corpn.) incorporated under the Indian Companies Act 1913, entered into an agreement

with its workmen's Union and arrived at the settlement. The two settlements pertained to the observance of Industrial Truce in the concern and the

employees stand to refrain from resorting to strikes etc. and companies forbearance not to retrench or lay off any of the workmen. These terms

were recorded. To these settlements a further agreement between the Coy. and its Union was added which provided for retrenchment of workers

for substantial reduction in the overhead expenditure of the Company. Some of the retrenched workers filed a writ in the High Court of

AndrahPradesh, challenging the validity of the agreement. The learned Single Bench of that Court dismissed the writ petition on merits.

In LPA, a Division Bench of the Andra High Court held the agreement of retrenching the workers as invalid, but came to the conclusion that as

the Company registered under the Companies Act, had no statutory duty or functions to perform, no writ of mandamus could lie against it. The

matter was taken up in appeal to the Supreme Court.

The only question which arose before the Supreme Court in the Appeal was whether the writ petition was not maintainable against the

Company, as held by Division Bench of Andra High Court. His Lordship Shelat, J speaking for the Court held:

...But it is well understood that 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 an application be maintained to secure performance of obligations owned by a Company towards its

workmen or to resolve any private dispute"". (See Sohan Lal Vs. Union of India 1957 SCR 738 = (AIR 1957 SC 529))..............

The company being a nonstatutory 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 mandamus, nor was there in its workmen any corresponding legal

right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for mandamus or an

order in the nature of mandamus could lie against the company.

In this case, it was further held that the remedy for the workmen was one available to them under the Industries Disputes Act and the workmen

were left to pursue their remedy under the Act.

In our case, the petitioners are workmen/employees of the Eveready Industries India Ltd., a public Coy. incorporated and registered under the

Companies Act, 1956. The petitioners/workmen are seeking payment of their wages from April 1996 from Respondents 2 and 3 besides, seeking

directions to Respondents No. 1 to take appropriate action against Respondents 2 and 3 for nonpayment of wages to the workmen. The Hon'ble

Single Bench allowed the petition to the extent that Respondents/State was mandated to act against the other two respondents of Eveready

Industries India Limited for their failure to pay wages to the workmen from April, 1996, but the writ of Mandamus against the other two

respondents (Respondent 2 and 3) was refused on the ground that Corporation was not the authority within the meaning of Article 12 of the

Constitution. The question that the Eveready Industries India Ltd. is no authority under Article 12 of the Constitution, is not in dispute. The answer

to the question whether writ can be still issued under Section 103 corresponding to Article 226 to respondents 2 and 3, in terms of the above

analysis, evaluation and discussions has to be in negative. Writ cannot be issued to the Eveready Industries, a Coy. incorporated and registered

under the Act, in so far as it is a separate distinct legal entity: Under the Companies Act, it is a nonstatutory body; neither statutory nor public duty

is cast on it by any statute. In the workmen no corresponding legal right for enforcement of any statutory or a public duty exists. The direction of

marking the attendance and forwarding the same to the Headquarters or its relevance for. payment of wages are matters preeminently informed of

private character and squarely covered by the Act under which the Company is created, the instrument of its existence, its bye laws and standing

orders. The dispute is covered by Industrial laws for which the workmen are free to pursue their remedies under particular applicable law(s)

including the Industrial Dispute Act.

Mr. R.A.Jan, submits that, the Apex Court has permitted him to approach this Hon'ble Court to seek modification of the impugned order on

the ground that the management of the Eveready Industries has effected closure of his Khonmoh Unit, Respondent 2 from August 20, 1997. The

submission of Mr. Jan, as even conceded by him has no material bearing on the relief granted by the learned Single Bench of this Court. Adinterim

directions if any, issued from time to time by the Benches of this Court shall merge with the judgment and the final order which this Division Bench

is passing in the case. Therefore, whether the closure has been effected in the Unit or not,is not a matter for this court to decide. This question,

does not presently arise for adjudication in the overall facts and circumstances of this case. The decision on this raised question is not material for

the disposal and decision of this appeal. Mr. Jan, is free to take the matter before the appropriate forum and admittedly, this is not the forum

available torn him for the purpose.

Having thus considered the matter and reached the conclusion as above, we are of the view that the impugned judgment and order of the

learned Single Judge is in order and the final order passed thereto does not merit any interference by this Bench. With the result that /he LPA is

dismissed on merits. No order to costs