Judgment:
Ashok Bhan, J.
1. Aggrieved against the directions issued by the single Judge to the appellant, which is a private limited company, constituted under the Companies Act, 1956, engaged in the manufacture of Electro Technical and Electronic Components, the appellant has come up in appeal on the short ground that the appellant not being the 'State', local or other authority within the meaning of Article 12 of the Constitution of India a writ petition under Articles 226 and 227 of the Constitution was not maintainable against it.
Facts. - The Writ petitioner-respondent No. 1 (hereinafter referred to as 'respondent No. 1') was appointed as a drilling machine operator by the appellant on May 11, 1991. He was confirmed in service on October 13, 1994. The appellant served a show-cause notice on respondent No. 1 dated November 27, 1998, alleging that he and other workers had struck work with effect from October 20, 1998, and as such the appellant was contemplating to take appropriate action against him for having gone on illegal strike. Besides deducting 8 days' wages as per the provisions of Section 9(2) of the Payment of Wages Act, 1936, respondent No. 1 was placed under suspension on October 20, 1998.
2. On receipt of the order, respondent No. 1 approached the appellant and requested him to provide employment with continuity of service and other benefits. This request was rejected by the appellant and respondent No. 1 was not taken back on duty.
3. Respondent No. 1 filed an application under Section 33-C(2)of the Industrial Disputes Act, 1947 (for short, 'the Act'), dated February 11, 1999, before the jurisdictional Tribunal for payment of subsistence allowance payable to him from the date of suspension. The Presiding Officer of the Labour Court had been transferred and a fresh officer in his place had not been appointed. As there was no progress in the case, respondent No. 1 filed the writ petition under Article 226 of the Constitution of India in this Court for issuance of a writ or direction directing the respondents to-
'(i) The first and the second respondents to investigate the matter as to why the third respondent has not so far commenced the enquiry in respect of the charges for which the petitioner was suspended, vide annexure-D, and as to why the monthly subsistence allowance payable to the petitioner under law has not been paid to him so far by the third respondent and take appropriate actions against the third respondent in that regard under law.
(ii) The third respondent to pay all the arrears of the subsistence allowance payable to the petitioner from the date of his suspension, i.e., October 20, 1998, vide suspension order dated October 20, 1998, annexure-D pending enquiry till today, with a further direction to continue to pay the monthly subsistence allowance as per law to the petitioner till the conclusion of the enquiry in respect of the charges for which he was suspended, vide annexure-D.
(iii) Pass such other order as this Court deems fit to pass under the facts and circumstances of the case.'
4. The appellant who was respondent No. 3 before the single Judge, did not appear in spite of service. He was ordered to be proceeded ex parte. Keeping in view the facts and circumstances, the learned single Judge issued the following three directions:
'(a) That respondent No. 3 shall compute and pay to the petitioner the arrears of subsistence allowance due to him on or before December 31, 2000.
(b) Thereafter, respondent No. 3 shall continue to pay to the petitioner the subsistence allowance during the period of the enquiry or until the enquiry is completed or until the suspension is revoked.
(c) That if the enquiry in question is not commenced before January 15, 2001, that it will be presumed that respondent No. 3 has no ground on which to proceed and the order of suspension will stand quashed and respondent No. 3 shall permit the petitioner to resume his duties.'
5. The facts were not examined in detail by the learned single Judge. The question regarding maintainability of writ petition against the appellant was also not examined. The appellant has filed the appeal along with I.A. No. 1 of 2001 to condone the delay of 20 days in filing the appeal. For the reasons stated in LA. No. 1, the delay in filing the appeal is condoned.
6. Counsel for the parties have been heard at length. There may not be much of dispute on merits on the direction issued by the single Judge. The management normally would be required to pay the subsistence allowance during the period of suspension. But the point is as to whether a direction could be issued by the single judge against the appellant under Article 226/227 of the Constitution of India especially when the application under Section 33-C(2) of the Act was pending with the Labour Court at Bangalore for the same relief.
7. Part III of the Constitution of India contains fundamental rights. The rights whichare guaranteed by Articles 14, 19, 21 and 31 are guaranteed against State action as distinguished from violation of such rights by private individuals. Under Article 12, in the context of Part III of the Constitution, 'State' has been defined to include the Government and Parliament of India and the Government and the Legislature of each of the States and all local, or other authorities within the territory of India or under the control of the Government of India. It gives an extended meaning to the word 'State'. The State not only includes the legislative and executive organisations of the union, but also bodies such as municipal authorities as well as 'other authorities' which includes the 'instrumentality or agencies' of the State or bodies or institution which discharge public function by character. It does not include private individuals. For violation of any other rights by the private individuals the person aggrieved has to seek his remedy under the general law. The appellant is a private limited company. Allegation against it is that non-payment of subsistence allowance during the period of suspension amounts to violation of Article 21 of the Constitution of India. Such a petition against a private individual would not be maintainable.
8. Counsel for the respondent relying upon the judgment of the Supreme Court in Air India Statutory Corporation v. United Labour Union, : (1997)ILLJ1113SC argued that a writ would be maintainable against a statutory corporation. There is no dispute about this proposition. Against a statutory corporation or instrumentality or agency of the State or a company owned wholly or partially by a share capital or floated from public exchequer which gives the indicia that it is controlled by or under the authority of the appropriate Government a writ would lie as it would then come under the word 'the other authorities' is mentioned under Article 12 of the Constitution. But a private individual or a company (sic) would not be covered. The said judgment has no applicability to the facts of the case, as in the said case the corporation was a statutory corporation and was held to be an instrumentality of the State. Private bodies having no statutory power or being supported by a State Act would not be 'State' within the meaning of Article 12 of the Constitution. Similarly, Society registered under the Societies Act or a company incorporated under the Companies Act would not be 'other authorities' within the meaning of Article 12 unless it is shown that the society was an instrumentality or agency of the State.
9. Although the orders passed by the single Judge are just, but the same cannot be upheld as the petition under Articles 226 and 227 of the Constitution was not maintainable against the appellant. Respondent No. 1 has already been reinstated. Respondent No. 1 shall be at liberty to pursue the application filed by him under Section 33-C(2) under the Industrial Disputes Act which is pending with the Labour Court. The Labour Court shall proceed to decide the application filed by the respondent in accordance with law without influencing itself by any of the observations made by the single Judge in his order or by us in this appeal. The Labour Court is directed to dispose of the application pending with it within four months of the receipt/production of a certified copy of this order.