Judgment:
1. The writ petition is directed against the notification published by the third respondent in Dina Thanthi dated 20.2.2011 and for a consequential direction against the third respondent to resolve the workers demand.
2. As per the notification issued by the newspaper, the third respondent asked for applications for appointment of persons on contract basis for Sanmina SCI Electronics Corporation and Nokia Simens Network, situate at Oragadam, fixing the educational qualification as Plus Two, ITI pass for men and women in the age limit between 19 and 28 years on a monthly salary of Rs.5600/- with food and transport facilities free, with a condition to work on contract basis in Nokia calling for applications from men and women who have passed 10th Standard, Plus Two failed in the age group of 19 to 25 years.
3. The writ petitioner is a Thozhilalar Sangam, which is a Union registered under the Trade Unions Act, in which the workers of the third respondent Company are its members. The list of workers is furnished in the typed set of papers. The third respondent has got a factory inside the Irungattukottai SIPCOT, which is engaged in the manufacture of parts supporting mobile signal and parts of mobile tower and server and it is a multi-national company.
(a) It is stated that out of 700 workers in the third respondent, nearly 200 workers are in the petitioner Union. The third respondent is 100% export oriented company, enjoying the concessions of the Government. According to the petitioner Union, the third respondent is adopting various unfair labour practice methods like, engaging contract workers in the place of regular workers.
(b) On 28.7.2010, the petitioner union made a charter of demands to the management and since there was no settlement, there was a strike notice issued on 8.9.2010 and thereafter, the third respondent management, according to the petitioner, started unfair labour practice by threatening workers to call off strike.
(c) It is stated that as per the advice given by the Joint Commissioner of Labour, Chennai, the petitioner Union has called off the strike and reported for work and in spite of it, the problems were not solved. Therefore, on 27.1.2011, the petitioner Union issued a second strike notice proposing to go on strike on 10.2.2011 or any day thereafter and the issue was relating to Basic Pay, D.A., H.R.A., other allowances, etc. Since there was a threatening attitude by the third respondent, the petitioner Union went on strike on 15.2.2011.
(d) Pending the same, the third respondent issued the present notification in the newspaper on 20.2.2011, calling for persons to work on contract basis. According to the petitioner, this is an unfair labour practice under clauses (6) and (10) of Schedule-V to the Industrial Disputes Act, 1947. It is stated that the third respondent is insisting the workers to give an undertaking to the effect that they will not indulge in strike and this is also an unfair labour practice.
(e) While the permanent workers are on strike, the third respondent is recruiting contract workers by issuing public notification, which is disobedience to the labour legislation. The Madras Export Promotion Zone (MEPZ) took an exception to the peaceful demonstration of the petitioner on 16.2.2011. The MEPZ authorities also removed the articles at the behest of the third respondent and therefore, the present writ petition is filed challenging the notification on various grounds including that the peaceful demonstration cannot be obstructed by the third respondent; that the demonstration outside the factory premises and inside the MEPZ compound cannot be obstructed and such obstruction would be against the judgement of the Supreme Court in B.R.Singh and others v. Union of India and others [(1989) 4 SCC 710] since the right of demonstration is a democratic right of the trade Union; that the act of the third respondent is contrary to the law and various judgments and the third respondent is trying to implement the notification, which will affect the rights of the workers and therefore, the present writ petition has been filed.
4.In the counter affidavit filed by the third respondent, it is stated that the writ petition is not maintainable as the third respondent is not a State or authority under Article 12 of the Constitution of India, but it is a private limited company and the third respondent is not performing any statutory or public duty.
(a) On merits, it is stated that the petitioner has no locus standi to represent the employees of the third respondent and it is not having representative character. It is stated that overwhelming majority of the workers of the third respondent are not members of the petitioner Union and only a handful of employees under the banner of the petitioner are indulging in illegal activities.
(b) It is stated that the third respondent is a wholly owned subsidiary of Sanmina SCI incorporated in the State of California, United States and it has factories throughout the world and the third respondent which is incorporated in India has its factory at SIPCOT HITECH Special Economic Zone at Oragadam.
(c) It is stated that the products manufactured by the third respondent are used in critical areas like telecommunication, defence, multimedia, enterprise computing energy and power sectors. The third respondent also manufactures base stations for 2G and 3G Spectrum telecommunication. The supply to the Telecom Industry is time bound in view of the fact that the Telecom Lincensees will have to roll out their services within the time prescribed in the licence granted to them and start using the spectrum allocated to them, failing which they will be liable for all consequences to the Telecom Regulatory Authority.
(d) The third respondent also manufactures several critical equipments, which are supplied to the army and air force for use in ground as well as air borne radars. Therefore, the functioning of the third respondent is in public interest and it is also vital for the security of the country.
(e) The third respondent commenced production at Oragadam in the year 2009 and salary paid to the workmen is above the wages paid by other establishments located in other regions and the wages is also being increased from 1.2.2011. It is stated that the third respondent has also obtained a certificate of registration for engagement of contract labour in non-core areas and entered into contract with several contractors who provide the necessary services engaging their own labour.
(f) It is stated that a handful of workmen formed the petitioner Union and they instigated and threatened the majority of workmen, who are not even its members with the intention to create industrial unrest and in December, 2010, they started creating disturbances in the canteen, falsely complaining that the quality of food served is not as per the standards. It was, in those circumstances, the contractor who was entrusted with the canteen was removed and the same has been entrusted to the workmen themselves to conduct the canteen. Since there was no opportunity to cause further disturbances, according to the third respondent, they started threatening the women employees from reporting for work.
(g) On 15.2.2011 some workmen indulged in stay-in-strike for a period of two days and thereafter, at the intervention of some authorities, they were removed from the factory premises and a dispute was raised before the Joint Commissioner of Labour alleging that they had given a notice of strike. In January, 2011, there was a manifold increase in the demand for products manufactured by the third respondent from the Telecom and Defence sectors and that necessitated the induction of additional man power on emergency basis.
(h) It is in order to scale up the production, it was decided to recruit additional employees and since substantial workmen employed through contractors in non-core areas were readily available, it was decided to consider them for employment and after evaluating their suitability, the third respondent recruited 200 workmen on its rolls. It is stated that the third respondent also recruited trainees in order to impart training on a sustained basis so that a trained man power would be available to be tapped in the event of increase in man power requirements.
(i) It is stated that the third respondent anticipated that it would require additional man power of as much as 800 employees in various roles. The prayer to quash the publication made in the newspapers, according to the third respondent, is not maintainable and even the advertisement has not been issued by the third respondent and the same has been issued by one of the contractors for recruitment of manpower not only in respect of the third respondent, but also with respect to other companies and it is stated that the third respondent has not issued the impugned advertisement, nor did they require any contractor to issue any such advertisement.
(j) It is also stated that the advertisement itself clearly shows that the recruitment is done by the contractor to fulfill the requirements of man power in pursuance of contract with various establishments. It is denied that the third respondent is engaging contract workers in the place of regular workers and indulging in unfair labour practice and the allegation is totally false. Further, the allegation that the third respondent has tried to break the peaceful demonstration by the workers is false. However, it is stated that the petitioner has no right to hold the demonstration in front of factory gate to prevent ingress and egress and when once large majority of workmen did not wish to participate in such an activity, it was improper for the petitioner Union to indulge in the demonstration.
(k) It is stated that even though the activities of the petitioner are unlawful, there has been periodical negotiations with the entire group of workmen and several welfare measures are being implemented. It is denied that the management is involved in any unfair labour practice. It is also denied that pending strike, the third respondent has issued the notification calling for contract workers.
(l) It is specifically stated that the third respondent has not issued the impugned advertisement but, on the contrary, it has been published by the contractor concerned pursuant to his contract. It is also stated that only few employees abstained from the work and large workmen continue to work. It is stated that MEPZ authorities have acted only in the best interest of the third respondent and some of workmen have stopped the buses carrying the workmen to the factory premises, threatened and intimidated them. It is stated that as many as 50 employees were prevented from entering the factory premises taking advantage of the stay granted by this Court and therefore, it is prayed that the interim order of stay granted by this Court must be vacated.
5. It is the contention of Mr.N.G.R.Prasad, learned counsel for the petitioner Union that the very purpose of advertisement is to replace the existing permanent workers by the contract workers and that would amount to unfair labour practice, especially when the demands of the petitioner Union are still pending. He would refer to Schedule I to the Industrial Disputes Act,1947 to show that the conduct of the third respondent would amount to unfair labour practice. It is his submission that the conduct of the third respondent in indirectly calling for such appointment would amount to the breach of constitutional integrity. He would rely upon the judgment of the Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation [(2010) 3 SCC 192] apart from the judgments in Standard Vacuum Refining Company of India Ltd., vs. Their Workmen and another (1960 (2) LLJ 233) and People's Union for Democratic Rights and others vs. Union of India [AIR 1982 SC 1473]. According to the learned counsel, nearly 68 persons have been appointed on contract basis and that will be opposed to law. He would also rely upon the judgment in Jaipur Zila Sahakari Hoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and others [(2002) 2 SCC 244].
6. On the other hand, Mr.Vijay Narayan, learned senior counsel appearing for the third respondent would submit that the prayer in the writ petition is not maintainable and the petitioner Union wanted to quash the newspaper advertisement not issued by the third respondent. According to him, it is a contractual matter which cannot be entered into by this Court under Article 226 of the Constitution of India. Even if the writ petition is allowed, according to him, there cannot be any interim order as claimed by the petitioner for injunction against the third respondent from recruiting any workman since the advertisement has not been issued by the third respondent. According to the learned senior counsel for the third respondent, even if the third respondent has issued such advertisement, no writ will lie. It is stated that the strike has been called off unconditionally by the workmen and the question whether all permanent workers had joined the company in 2008 as contract labourers is not a subject matter of the writ petition and the dispute regarding the question of fact cannot be decided under Article 226 of the Constitution of India. It is submitted that 1350 persons are working including permanent and contract labourers and only a handful of workers are staying out. According to the learned senior counsel, the contract labourers have no right under the Industrial Disputes Act and section 33 of the Industrial Disputes Act does not apply to the contract labour, by relying upon the judgment in [AIR 2001 SC 3527]. According to him, there is no statutory right on the part of the petitioner and there is no violation of any provision of the Act which is also not the case of the petitioner. According to the learned senor counsel, the Contract Labour Rules give certain permissions. As far as concession is concerned, the learned senior counsel submitted that the third respondent is having abundant concessions as per the policy of the Government, which cannot be tainted to be illegal. He would rely upon the judgments in G.Bassi Reddy vs. International Crops Research Institute and another [(2003) 4 SCC 225], Lt.Col.M.J.Reddy vs. The Deputy High Commissioner, British Deputy High Commission, Chennai [2010 (3) CTC 834], ICICI Bank Ltd., vs. Lakshminarayanan [2009 (1) CTC 22] and Management of GE Power Controls Pvt., ltd., vs. Workmen of GE Power Controls Private Ltd., [2005 (1) LLN 285].
7. On a reference to the impugned advertisement, there is absolutely nothing to show that the same has been issued by the third respondent. However, the contents of the advertisement show that the advertisement seeks to make appointment on contract basis also in respect of the third respondent company apart from many other companies like, Nokia, etc. For proper appreciation, it is relevant to extract the impugned advertisement:
VERNACULAR (TAMIL) PORTION DELETED
8. The third respondent in the counter affidavit, in no uncertain terms, states that it has not given the said impugned advertisement and the same appears to have been issued by one of the contracts of man power. On facts, it is clear that there is nothing to show that the permanent employees of the third respondent company are either going to be removed or replaced by such contract employees. The third respondent in the counter affidavit has also stated that the intention of the third respondent is not to remove any of its permanent employees. It is also categorically stated by the third respondent in the counter affidavit that at no point of time, the contract workmen were engaged in the place of regular workers. If the petitioner Union when it consists of any number of workmen who are the permanent workers, raises any dispute regarding the conditions of service and for that purpose, resorts to any method which is prescribed under the Industrial Disputes Act, the same is different. But, the petitioner has filed the present writ petition challenging the advertisement on surmises that the permanent workmen of the third respondent company in which some of the members of the petitioner Union are working, are likely to be replaced by the contract workers. On the specific stand taken by the third respondent in the counter affidavit that it does not desire to replace any of its permanent workmen, in my considered view, the writ petitioner has no grievance as on date. Even assuming that the third respondent by issuing the advertisement through the third party contractor, has taken steps to replace the permanent workmen, the petitioner Union has got definite right and remedy available under the Industrial Disputes Act and therefore, in my considered view, the present writ petition is premature.
9. As far as the claim of the petitioner to have agitation in peaceful manner is concerned, the same, if it is permissible under the Industrial Disputes Act, cannot be certainly obstructed, but, as on date, on the specific stand taken by the third respondent company in the counter affidavit, I am of the very firm view that the writ petition has been filed based on surmises.
10. The judgment of the Supreme Court in Standard Vacuum Refining Company of India Ltd., vs. Their Workmen and another (1960 (2) LLJ 233), on which the reliance was placed by the learned counsel for the petitioner has no relevance to the facts of the present case. That was relating to abolition of contract labour system and an attempt was made for the purpose of replacing the permanent workmen by virtue of contract labour system. But, that is not the case on hand.
11. In the absence of the third respondent having issued the impugned advertisement and on the specific stand raised in the counter affidavit of the third respondent disowning the same, the judgment of the Supreme Court in Andi Mikta Sadguru Shree Mukherjee Vandas Swami Suvarana Jayanthi Mahotsav Smarak Trust vs. V.R.Rudani [(1989) 2 SCC 691], which was relied upon by the learned counsel for the petitioner has no application.
12. Again, the judgment in Mathura Refinery Mazdoor Sangh vs. IOC Ltd., [(1991) 2 SCC 176] on which reliance was placed by the learned counsel for the petitioner, relates to casual labourers and the decision of the Tribunal holding that the labourers employed by the contractors were not Refinery employees and they were working under the contractors. It was held that their termination was justified, but, with a suggestion by way of relief for consideration by Advisory Board about continuation of contract labour system in the Refinery. Certainly, the said judgment is not applicable to the facts of the present case.
13. The judgment in National Federation of Railway Porters, Vendors and Bearers vs. Union of India [(1995) Suppl. 3 SCC 152] relates to absorption of contract labourers as per the provisions of Contract Labour (Abolition and Regulation) Act, 1972 and the same is not applicable to the facts of the present case. On the facts of the case, we are not concerned with the above said Act and it is also not even the case of the petitioner Union.
14. Further, law is well established in respect of the principle of laissez faire which has been reiterated in Harjinder Singh vs. Punjab State Warehousing Corporation [(2010) 3 SCC 192] by the Honble Mr.Justice G.S.Singhvi in the following paragraphs:
27. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treatise: Democracy, Equality and Freedom, Justice Mathew wrote:
The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employers directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employees life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule became settled at a time when the words master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employers absolute right to discharge the employee. Such a philosophy of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large-scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employers right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him. (emphasis added)
28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p.486, para 25) 25. ... It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. Such a philosophy, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom,p.326), of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words: (SCC p.9, para 12)
12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
30. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison djtre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.
and by the Honble Mr.Justice A.K.Ganguly in the following paragraphs:
42. That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
38. State to secure a social order for the promotion of welfare of the people.(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
This is echoing the Preambular promise. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political, informs all the institutions of the national life. This was also made clear in Kesavananda Bharati19 by Mathew, J. at p.1952, para 1728 and His Lordship held that the directive principles nevertheless are: (SCC p.881, para 1714) 1714. ... fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The fundamental rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
43. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Singhvi, J. that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
The same is, therefore, the most celebrated concept of the labour legislation opposing ugly principle of hire and fire, but, unfortunately, the same is not applicable to the facts of the present case.
15. In the absence of any concrete evidence to show that the intention of the third respondent is to replace its permanent employees, the judgment of N.V.Balasubramanian,J. (as His Lordship then was) in M.K.Padmavathy vs. The Institute of Hotel Management, Catering Technology and Applied Nutrition [1996 (2) MLJ 367] relating to the retrenchment under section 2(oo) of the Industrial Disputes Act, which is as under:
11. The question that has to be decided is whether the termination of the petitioner would amount to retrenchment as stated but the respondent in his counter affidavit. The respondent in his counter affidavit has stated that the termination of the petitioner was not retrenchment under Sec.2(oo)(bb) of the Act. It was stated that the termination was strictly under the terms of the enactment and in confirmity with the rules and regulations of the institute. The rules and regulations of the institute were not placed before the Court. It is only left with the order of appointment of the petitioner. The first order of appointment clearly says that the appointment was purely temporary and liable to be terminated at any time without any notice. When the petitioner was reinstated on 21.1.1985 even the clause that the appointment was purely temporary and was liable to be terminated without notice was absent in the order dated 21.1.1985. The salary was no doubt paid on contingent basis of Rs.5 per day of work. Can it be inferred that the order of appointment contained a specific stipulation that there will be a termination of the services of the petitioner as a result of the non-renewal of the contract. It is not possible to construe from the letter of appointment that the appointment is for a fixed period. The order of appointment does not show that it is for a specific or a fixed or a definite period. The petitioner was appointed as a laboratory attendant and it cannot also be assumed that the work for which she was appointed also came to an end on the termination of the services of the petitioner. There is also no evidence to show that the post itself has been abolished. There is no express stipulation in the contract of employment about the termination of the petitioner, and hence the exclusionary clause (bb) of Sec.2(oo) does not apply to the facts of the case. If the exception clause does not apply the termination of the petitioner would amount to retrenchment within the meaning of Sec.2(oo) of the Act. The petitioner as seen from the order of appointment has worked for more than 240 days before her services were terminated with effect from 31.12.1985. It is a clear case of violation of Sec.25-F of the Industrial Disputes Act and the order of termination has to be declared as void and the petitioner is also entitled to back wages is again not helpful to the case of the petitioner Union.
16. The judgment in People's Union for Democratic Rights and others vs. Union of India [AIR 1982 SC 1473] on which reliance was placed by the learned counsel for the petitioner is relating to public interest litigation in respect of the Employment of Children Act.
17. On the other hand, a reading of the advertisement which has not been given by the third respondent shows that it is purely contractual in nature and therefore, the judgment of Division Bench of this Court presided over by the then Honble Chief Justice, Markandey Katju,J. (as His Lordship then was) in Management of GE Power Controls Private Ltd., vs. Workmen of GE Power Controls Private Ltd., (2005 (1) LLN 285), is as under:
11. The language of Art.226 is no doubt very vide. It states that a writ can be issued to any person or authority and for enforcement of right conferred by Part III and for any other purpose. However, the aforesaid language in Art.226 cannot be interpreted and understood literally. We cannot apply the literal rule of interpretation while interpreting Art.226. If we take the language of Art.226 literally it will follow that a writ can be issued to any private person or to settle even private disputes. If we interpret the word for any other purpose literally it will mean that a writ can be issued for any purpose whatsoever, e.g., for deciding private disputes, for grant of divorce, succession certificate etc. Similarly, if we interpret the words to any person literally it will mean that a writ can even be issued to private persons. However, this would not be the correct meaning in view of various decisions of the Supreme Court in which it was held that a writ will lie only against the State or instrumentality of the State vide Chander Mohan Khanna v. National Counsel of Educational Research and Training [1992 (1) L.L.N.16], Tekraj Vasandhi (alias) K.L. Basandhi v. Union of India (1988 (1) L.L.N.892), General Manager, Kisan Sahkari Chini Mills Ltd., v. Satrughan Nishad (2003 (4) L.L.N. 1238), Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others (2002 (5) S.C.C. 111) etc. In General Manager, Kisan Sahkari Chini Mills Ltd., vs. Satrughan Nishad (2003 (4) L.L.N. 1238) (vide supra), the Supreme Court observed that a writ will lie against a private body only when it performed a public function or discharged a public duty. In our opinion the appellant is not performing a public function nor discharging a public duty. It is only doing commercial activity. Hence, no writ lies against it.
is not helpful to the petitioner union.
18. While interpreting the term, person or any other purpose under Article 226 of the Constitution of India, Ruma Pal,J. (as Her Lordship then was) in G.Bassi Reddy vs. International Crops Research Institute [(2003) 4 SCC 225] held as follows:
27. It is true that a writ under Article 226 also lies against a person for any other purpose. The power of the High Court to issue such a writ to any person can only mean the power to issue such a writ to any person to whom, according to the well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words and for any other purpose must mean for any other purpose for which any of the writs mentioned would, according to well-established principles issue.
28. A writ under Article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corpn. v. C.A. Imanual Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC at p.698 and VST Industries Ltd. v. Workers Union). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities. In Praga Tools Corpn. v. C.V. Imanual5 this Court construed Article 226 to hold that the High Court could issue a writ of mandamus 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. The Court also held that: (SCC p. 589, para 6) [A]n 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 owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India.)
Therefore, the term any person used in Article 12 of the Constitution of India is available against any person, amenable to writ jurisdiction of the Court, as it was held in G.Bassi Reddy vs. International Crops Research Institute [(2003) 4 SCC 225].
19. In such circumstances, when it is certainly open to the petitioner Union to work out its remedy in the manner known to law, if the rights of its members are affected by replacement of the permanent employees with the contract labour, I am not agreeable to the contention of the learned counsel for the petitioner that this Court should interfere with the advertisement issued by the third party on the basis that it is a constitutional impropriety. Whether it is proper or not, is yet to be ascertained with the help of material evidence and in the absence of any iota of evidence, it is not possible to give any relief to the petitioner Union in this writ petition. In such view of the matter, giving liberty to the members of the petitioner Union, as and when their permanent status is affected, to approach the appropriate authority under the Industrial Disputes Act, the writ petition stands dismissed. No costs. Connected miscellaneous petition is closed.