Heard Sri Ram Swaroop Yadav, learned counsel for the petitioner and learned Standing Counsel.
Brief Facts Petitioner was initially appointed on 19.02.2010 as a Senior Sales Officer in Grade G3 in M/S HDB Financial Services Ltd. and posted at his branch office situated at Lekhraj Khazana Complex, Faizabad Road, Indira Nagar, Lucknow. As per the pleadings made by the petitioner in the present, in the month of June, 2010 he was verbally advised by the O.P. No. 2 to remain absent from his duty till further orders or till regular salary bills are cleared. Having no other alternative before him, he complied the said direction but when no steps were taken by the O.P. No. 2 in this regard, a legal notice was served by him on the opposite parties on 09.06.2010 inter alia demanding the outstanding dues of salary of the petitioner for the period 19.02.2010 to 31.05.2010, be paid to him within one month from the date of receipt of the legal notice.
It is further submitted on behalf of the petitioner that by letter dated 15.06.2010 (Annexure-3) the O.P. no. 2 informed him that the salary as demanded by him will not be paid in view of the reasons, so on 19.06.2010 petitioner sent another Legal Notice to the O.P. Nos. 2 and 3 to reconsider the matter but the O.P. No. 2 turned down the request of the petitioner by means of the letter dated 29th of June, 2010 (Annexure-2) and stated that the case of the petitioner is closed and no further communication would be entertained in the matter.
Aggrieved by the said action, the petitioner has filed the present writ petition thereby challenging the letters/orders dated 15.06.2010 and 29.06.2010 (Annexure Nos. 3 and 5).
Preliminary Objections on behalf of O.P. No. 1.
Sri Rakesh Srivastava learned Standing Counsel has raised a preliminary objection that the order dated 15.06.2010 and 29.06.2010 under challenge in the present writ petition are passed by the authorities namely (a) The Human Resources Head, M/S HDB Financial Services Ltd., Process House, Lower Ground, Kamala Mills Compound, Senapati Bapat marg, Lower Parel, Mumbai (b) The Branch Manager, M/S HDB Financial Services Ltd., Lekhraj Khazana Complex, Faizabad Road, Indira Nagar, Lucknow as they are neither state nor instrumentalities of the state within Article 12 of the Constitution of India so the present writ petition filed by the petitioner is not maintainable under Article 226 of the Constitution of India are not maintainable and the same are liable to be dismissed on the said ground.
Rebuttal to the preliminary Objection by counsel for the petitioner Sri R.S. Yadav, learned Counsel for the petitioner submits that the present writ petition filed by the petitioner challenging the impugned order is maintainable before this Court under Article 226 of the Constitution of India in view of the averments made in paragraphs 2, 3 and 4 which are reproduced hereinbelow:--
Para - 2 - That prior to proceed with the case in question the petitioner submits before this Hon'ble Court that normally the writ cannot be issued against a private party or body, but there are well established exceptions to this rule and one of them is that if impugned action is based on some rule or order having statutory force, then the writ can be issued. Since the impugned action in the instant writ petition is absolutely illegal, entirely arbitrary and manifestly violative of the principles of natural justice, hence the petitioner seeks the protection under Art. 226 of the Constitution of India by way of questioning the impugned action before this Hon'ble Court while relying upon the findings of the order / judgment passed in similar other writ petitions by Hon'ble Mr. Justice R.R.K. Trivedi, J. reported in (1994) 1 UPLBEC 51.
Para - 3 - That the petitioner further submits before this Hon'ble Court that no disputed question of facts is involved here in the instant writ petition. The full and final settlement of the outstanding dues of the petitioner is the main issue to be decided by this Hon'ble Court. The impugned orders are clearly in violation of the principles of the natural justice e.g. The voluntary dis-abandonment of service of the petitioner is the resultant outcome of the self serving illogical conclusions drawn themselves by the opposite party No. 2 & 3; No opportunity even of hearing to have been given in this regard by the opposite parties rather quite deliberately; It has been admitted by the opposite party No. 2 that salary to the petitioner could have not been paid to him in time due to the lapse on the part of opposite party NO. 3, who apparently seen to have miserably been failed to provided the Bank A/C NO. of the petitioner to O.P. No. 2; The most unwarranted / uncalled for and quite arbitrary act to have been committed by the opposite party NO. 2 & 3 while making deductions in the full and final settlement statement without giving an opportunity of hearing to him for the same; No domestic enquiry even to have been conducted with regard to absence of the petitioner.
Para - 4 - That the petitioner submits before this Hon'ble Court that in view of the facts stated above it shall not serve any useful purpose if the petitioner is relegated to the alternative remedy by approaching the State Govt., the opposite party NO. 1, for making a reference to the labour court under the provisions of the U.P. Industrial Disputes Act 1947. So much so it is apparent on the face of the record that services of the petitioner to have been terminated by the opposite party No. 2 & 3 and thereafter the name of voluntary dis-abandonment of service of the petitioner to have been propagated by them in order to cover up their misdeeds and as such the termination of service of the petitioner amply goes to show the civil consequences of jeopardizing not only his livelihood but also the carrier and livelihood of his dependents which is violative of Art. 14 & 21 of the Constitution of India - the prompt and efficacious remedy to which is only available with this Hon'ble High Court. Hence the instant writ petition."
In support of the abovesaid facts he relied on the para 10 and 11 of the case of Narendra Pal Gahlot Vs State of U.P. and another [(1994) 1 UPLBEC 51], which are reproduced here under:-
Para No. 10 - At this Stage, it would also be appropriate to reply the contention of the learned counsel for the respondents with regard to the maintainability of the present writ petitions on the ground of alternative remedy. As clear from the discussions made above for determining the controversy involved in the present case, no disputed questions of facts are involved. Petitioners have approached this Court for challenging impugned orders passed against them mainly on a legal question which has been answered in their favour. The impugned orders are clearly in violation of the principles of natural justice and this violation is apparent on the face of record and even otherwise admitted, though sought to be justified under the provisions contained in the relevant Certified Standing Orders. In these facts and circumstances, in my opinion, it shall not serve any useful purpose if the petitioners are relegated to the alternative remedy by approaching State Government for making a reference to the Labour Court under the provisions of the U.P. Industrial Disputes Act, 1947. In the facts and circumstances of the case, the objection raised by the learned counsel for the respondents regarding the maintainability of the writ petitions on this ground cannot be accepted.
Para No. 12 - For the reasons recorded above, these writ petitions are allowed. The impugned orders dated 13th May, 1993 passed in Civil Misc. Writ Petition Nos. 18116 of 1993 and 18118 of 1993 and 12th May, 1993 passed in Civil Misc. Writ Petition No. 18117 of 1993 terminating their services are quashed. There will be no orders as to costs.
Accordingly, Sri R.S. Yadav, learned counsel for the petitioner submits that as the action of the opposite parties amounts to depriving the petitioner from earning his livelihood and the said action on their part is violative of Article 14 and 16 of the Constitution of India so the present writ petition is maintainable, the impugned orders are liable to be set aside.
Finding and conclusions Factual matrix of the present case it is not disputed that the petitioner is an employee of the M/S HDB Financial Services Ltd. posted at branch office situated at Lekhraj Khazana Complex, Faizabad Road, Indira Nagar, Lucknow and the orders dated 15.06.2010 and 29.06.2010 have been challenged by means of the present writ petition issued by the authorities/employees of M/S HDB Financial Services Ltd. Accordingly, so the first and foremost question which is to be adjudicated and decided in the present case is that whether M/S HDB Financial Services Ltd. come within the definition of State as given under Article 12 of the Constitution of India.
Apex Court in the case of in Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others 1981 (1) SCC 772 has laid down the following guideline for a body to be a part of a state under Article 12, the same is as follows:--
(1) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government."
(2) "Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character."
(3) "It may also be a relevant factor....... whether the corporation enjoys monopoly status which is the State conferred or State protected."
(4) "Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."
(5) "If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government."
(6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government."
Hon'ble the Apex Court in the case of Pradeep Kumar Biswas case Vs. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 and Zee Telefilms Ltd. Vs. Union of India 2005 (4) SCC 649 after taking into consideration the law as laid by the Apex Court in the case of Ajay Hasia (supra) has laid down the following guidelines in order to finding out a body that when a body can be state to fall within the scope of Article 12, the same are summarized as under:-
Further the Apex Court in the case of Zee Telefilms Ltd. Vs. Union of India 2005 (4) SCC 649 Hon'ble the Supreme Court after taking into consideration the following points:-
(1) Principles laid down in Ajay Hasia, (1981) 1 SCC 722 are not a rigid set of principles so that if a body falls within any one of them it must exhypothesi, be considered to be a State within the meaning of Article 12.
(2) The question in each case will have to be considered on the basis of facts available as to whether in the lgiht of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.
(3) Such control must be particular to the body in question and must be pervasive.
(4) Mere regulatory control whether under statue or otherwise would not serve to make a body a part of the State.
Recently, the Apex Court in the case of Sindhi Educational Society and others Vs. The Chief Secretary, Government of NCT of Delhi and others reported in JT 2010 (7) SC 98, held as under:-
The interpretation of the word `State' really does not require any deliberation as this aspect is no more res-integra and has been settled by the law stated in the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722], where this Court spelt out the test that would be applicable in determining whether a Corporation or a Government Company or a private body is an instrumentality or agency of the State. Primarily, there are different type of controls, which can be exercised by the State over any other authority, society, organization or private body to bring it within the ambit of the expression `State' or `other authority' appearing in Article 12 of the Constitution. These are financial control, managerial and administrative control and functional control. To put it differently, what is the administrative control that the Government exercises upon such a body, whether functions of that body are governmental functions or closely related thereto, quantum of State control, volume of financial assistances, character and structure of the body and cumulative effect of these factors etc. This has been followed consistently in the case of Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban) [(2005) 5 SCC 632] and in a very recent judgment in the case of State of U.P. v. Radhey Shyam Rai [(2009) 5 SCC 577], wherein this Court held that Uttar Pradesh Ganna Kishan Sansthan (Sansthan) is a State because these criteria were satisfied and even the State could take over the functions of the Sansthan. Unless all these three aspects are established or they are stated to be satisfied, it will not be permissible to term that society, organization or body as a `State'.
In view of the abovesaid facts and the test as laid down by the Apex Court by way of judicial pronouncements in order to bring a authority within the ambit and scope of Article 12 of the Constitution of India, the same is applied in the present case, as to whether M/S HDB Financial Services Ltd. comes within it then the picture which emerged out is to the effect that M/S HDB Financial Services Ltd. does not fall within the ambit and scope of Article 12 of Constitution of India. So, the present writ petition filed by the petitioner thereby challenging the orders passed by employees/authorities of M/S HDB Financial Services Ltd. is not amenable under Article 226 of Constitution of India.
Further, the submission as made by the counsel for the petitioner that the present writ petition filed by the petitioner is maintainable as by the action of the respondent Nos. 2 and 3 thereby terminating the services of the petitioner is in violation of Article 12 and 20 of the Constitution of India, so the writ petition is maintainable is wholly misconceived and incorrect.
So, the petitioner cannot derive any benefit from the law as laid down by this Court in the case of Narendra Pal Gahlot (supra) as in the said case this Court has entertained the writ petition under Article 226 of the Constitution of India and has not delegated the petitioner to an alternate remedy under the provisions of Industrial Disputes Act, 1947 before the lower court because there is a violation of certified standing orders which governs the service condition of the petitioner. So, the said judgment is not an authority on the point that in case if a authority or body does not within the definition of Article 12 of the Constitution of India, the writ petition filed challenging the action of the said authority or body is maintainable under Article 226 of Constitution of India or not. Accordingly, the argument advanced by learned counsel for the petitioner placing reliance on the said judgment are misconceived and rejected.
For the foregoing reasons, the present writ petition filed by the petitioner lacks merit and is dismissed as not maintainable under Article 226 of the Constitution of India.
No order as to costs.
Order Date :- 29.09.2010 Ravi/-