K G RAJANKUTTY Vs. MODI RUBBER LTD

JUDGEMENT

(1.) The legality and validity of the order of termination dated 3rd February/94 is challenged in this writ appication. That order is at Annexure-'E' to the Writ application and that is quoted below : Sub: Termination

(2.) I have heard Shri A. Dasgupta, Learned Advocate for the petitioner and Shri S.N. Sarma Learned Advoxate for the respondents No. 1,2 and 3. None appeared for the respondent No. 5 and Shri Banerjee, Learned Govt. Advocate appeared for the respondent No. 4. Shri Sarma, appearing for the respondents No. 1 to 3 raises two preliminary objections:

(3.) On the other hand, Shri A. Dasgupta, Learned Advocate appearing for the petitioner relies on 1981 LIC Page 942 (T. Oattaiah and Ors. Vs- The Commissioner of Labour and another) whenein in paragraph 24, the law has been laid down as follows: That apart the State power to render justice between a citizen and a citizen and between a citizen and the State belongs to the constitutional courts of our country more by reason of their establishment and less by reason of conferment of power by the co-ordinate organs of the State acting under the Constitution. Reunciation of such jurisdiction cannot easily be accepted. Some of the afore mentioned cases drew a picture of dreadful consequences as flowing from giving a wider meaning to the word 'person' In my humble opinion, there is no scope for any such apprehension so long as we understand that the power under Art, 226 of the Constitution is exercised on the basis of its public law foundations and the field of public law is clearly different from the field of private law. Although there is high authority and uniform practice to the contrary we cannot in principle issue the private remedy of an injunction in the place of the public remedy of mandamus or vice versa. Regarding Hariharan case (AIR 1960 Andh Pra 518) (supra) of our High Court and the Neyveli Lignite Corporation (AIR 1966 Mad 399) (supra) case of Madras High Court. I must make a special mention. Both these cases had proceeded on the assumption that the limited companies in those two cases although owned and controlled by the Government of India are two separate and distinct legal entities from the Government and that, therefore, they are not amenable to the writ jurisdiction under Art, 226 of the Constitution. This is a view which, in my humble opinion, totally missed to take into account the significance of the great American doctrine of State action as applicable to Art. 32 and 226 of the Constitution. I am one of those few who have first sought for the applicability of this American doctrine in our Courts. In D, Jayasri-Vs-Kakatiya Medical College. Warangal, (1967) I Andh WR 247 this court held that a writ would lie at the instance of the petitioner seeking admission into a medical college against a Society which was registered under the Societies Registration Act. I further sought for the enforcement of this American doctrine of State action in cases like Kanaka Durga-Vs-Kakatiya Medical College, AIR 1972 Andh Pra 83. Subhadra Devi-Vs-Andhra Girls College (1973) I Andh WR 94 and P.V. Naidu-Vs-A.P. Mining Corporation, (1974) I APLJ 222 and also in unre- ported judgments in Writ Petns. 4239 of 1969. D/-12.5.1970 and 3103 of 1975. D/-17.4.1978: (1978 Lab IC NOC 204). This doctrine has now been firmly implanted into our Corpus Juris by a recent judgment of the Supreme Court reported in Ajaya Hasia-Vs-Khalid Mujib, AIR 1981 SC 487. The acceptance of this doctrine by our Courts would clearly constitute at least partial, though not total rejection of the dictum of Atkin L. J., in the above case. According to the traditional theory an incorporated company is a distinct legal person as Hindustan Shipyard and Neyveli Lignite Corporation are undoubtedly. The Constitution did not confer any powers on these bodies to affect the traditional rights of the citizen relating to freedom and liberty. If the dictum of Atkin L.J. was to be followed, no writ would issue to such bodies. The fact that writs are now being issued against such bodies would clearly show the partial atrophy that the doctrine of Atkin L.J., had suffered. For our constitutional purposes it is now clear that a private person can transform himself into a person in authority not merely by sharing in and exercising the State power affecting the rights of the citizen but even by possessing power to grant bounties and facilities. Such a private person's activities should be amenable to writ jurisdiction."