PREM SHANKAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, Deputy Finishing House Incharge of the Ashok Paper Milk Limited (hereinafter referred to as the Company), through this writ application filed on 30 -3 -1989, prays to quash a communication made to him by the Works Manager Incharge of the Company (Respondent No. 4) vide letter dated 29 -12 -1987 (as contained in Annexure 8) to effect that as per the decision of the Board of Directors of the Company, he is being informed that his joining with effect from 4 -11 -1987 has not been accepted and that it will be considered only after a decision is taken to restart production of the Company. The petitioner also prays for issuance of an appropriate writ or direction of order commanding the Respondents to allow him to join on the post he was working prior to proceeding on leave granted by Respondent No. 4 as also to pay his salary and wages from August, 1985 to March, 1987 (the period during which he was on duty) and from 4 -11 -1987 to date. The Facts:

(2.) The petitioner asserts that the Ashok Paper Mills Limited is a company registered under the Indian Companies Act, 1956, having its registered Office at Calcutta, which was set up as a joint venture of the Governments of Bihar and Assam, that the Company is having two units one at Jogighipa in Assam and the other at Rameshwar Nagar, Darbhanga, in Bihar, that he was appointed in the Darbhanga unit of the Company on 8 -8 -1975 or an Assistant Incharge, Finishing House, that for various causes the production of the units are suspended since about August, 1982, without any declaration of lock out or closure, that nearly 600 employees including the petitioner are still on the rolls of the Company in its Darbhanga Units although everyday their attendance are being marked but without being paid wages since February, 1983 though the Government of Bihar is making advance and ad hoc payments of meagre amounts to them on the eve of few important festivals once or twice in a year, that due to non -payment of salary and wages it became very difficult for him to stay at the Factory site quarters and at last applied for leave with effect from 1 -4 -1987 for one month vide his leave application dated 28 -3 -1987 (as contained in Annexure 2) to Respondent No. 4, which was granted to him without pay, which was extended through his application dated 30 -4 -1987 (as contained in Annexure 3) sent by registered post to 2 -6 -1987 and then by another leave application (as contained in Annexure 4) on 25 -6 -1987 and 31 -7 -1987 and he further extended his leave up -to 30 -10 -1987 on account of flood vide Annexure 5 : that on the expiration of his leave, he went to join duty on 4 -11 -1987, submitted his joining report to Respondent No. 4 on 4 -11 -1987 and he was allowed to join and to sign the Attendance Register, that Respondent No. 4 wrote a letter dated 18 -11 -1987 (as contained in Annexure 6) to Respondent No. 3, the Director Incharge, Gauhati, informing him that the petitioner was absent for more than 90 days and recommending for sanction of extra -ordinary leave to regularise his joining through without stating the facts therein, that the Respondent No. 4 also wrote letters dated 14 -11 -1987 and 29 -5 -1988 (as contained in Annexure 7 and 7/A) addressed to the Joint Director, Industries (C. and A.), Government of Bihar, Patna, and to the Deputy Collector, Nazarat, Darbhanga, Correctly mentioning therein about he petitioner having proceeded on long leave with effect from 1 -4 -1987 till 4 -11 -1987, on which the petitioner was informed of the impugned communication (as contained in Annexure 8), that thereafter the petitioner was stopped from signing the Attendance Register, that the petitioner met the Director Incharge, submitted representations after representations (as contained in Annexures 9, 9/A and 9/B). But has not received any correspondence though he was assured for sympathetic consideration and hence this writ petition.

(3.) Respondents Nos. 2 and 4, in their preliminary counter -affidavit (dated 3 -8 -1989 filed on 11 -9 -1989), assert, inter alia, that they (Respondent Nos. 2 to 4) are not 'authorities', that no averment has been made by the petitioner to show that the Government exercises plenary control over the affairs of the Company, which is not a Government Company as defined under the Companies Act, 1956, that the subscriber to its share capital is the public at large, in which the Governments of Bihar and Assam are share holders to the extent of 16% and 32% respectively which is not a relevant factor to classify it as an instrumentality or agency of the State, that even otherwise the Company does not discharge functions in the nature of public or closely related to the Governmental function, that the Company was established solely with the object of making profit from the business of manu facturing paper, that the writ application has been filed much after a year from the date of the impugned order without any explanation offered for the delay and, accordingly, the petitioner is guilty of laches and on this ground alone, the writ application is fit to be dismissed in limine, and that the petitioner was granted leave by the Board of Directors as per the Companies Leave Rules.