Radhakrishna Vs. Mysore Sugar Co. Ltd. - Court Judgment

Excerpt:
precedents - judicial discipline - maintaining authority of judicial hierarchy at different levels not to be departed from whatever the persuasion - division bench having taken a particular view & later full bench taking a slightly different view & supreme court laying down various principles relevant to determine issue : if single judge were to proceed to resolve the controversy, it would be offending judicial discipline tantamount to questioning binding decision of division bench : improper to make reference to division bench.; writ petitions resisted on preliminary objection as to maintainability relying on division bench ruling in ilr 1991 kar 4207 holding respondent - company not amenable to writ jurisdiction. per contra, reliance being placed on , air 1992 sc 76, air 1994 allahabad 182 laying down liberal approach, seeking reference to division bench for re-consideration in the light of subsequent position in law:; judicial discipline itself requires that certain practices and procedures be adhered to in the interest of consistency and in the interest of maintaining the authority of the judicial hierarchy at different levels which under no circumstances can be departed from whatever may be the persuasion... whereas the division bench of this court has undoubtedly taken a particular view with regard to the status of the respondent-company, it is equally true that at a slightly later point of time the full bench of this very high court which is a higher forum than the division bench had occasion to take a slightly different view in its approach. that apart, the supreme court which is the apex judicial authority in the country has laid down various principles that are equally relevant for determining this issue. the only difficulty in the way of a learned single judge on whom the lot of these decision are binding is that if he were to proceed to try and resolve the controversy, he would be offending the principle of judicial discipline because that would fly in the face of the principle that would oblige him to unquestioningly accept the view of the appeal court and would in other words be tantamount to questioning the binding decision of the division bench which he is not permitted to do. in these circumstances, therefore, it would be improper for this court to make a reference to the division bench howsoever pressing the circumstances are.;(b) constitution of india - article 226 - 'person' : connotation - means person in ex-officio capacity not personal or individual status.; the term 'person' as it appears in article 226 is not to be construed in the parlance of a private person or authority but will have to be read in relation to the phrase as it appears in article 226 of the constitution where a reference is to 'person' or 'authority'. the use of the word 'or' clearly indicates that the 'person' in sum and substance and in relation to an authority means a person in ex-officio capacity and not a personal or individual status. - employees state insurance act, 1948 [c.a. no. 34/1948] -- section 85-b: [k.ramanna, j] damages for delayed payment of contribution - imposition of damages for delayed payment - proceedings initiated after 13 years - levying damages - held, under section 85-b of the esi act, the esi authorities are entitled to levy penalty by way of damages for the delayed payment of contributions. there is no limitation prescribed under the esi act to initiate proceedings against the employer to levy damages for the delayed payment of contribution.section 85-b: [k.ramanna, j] damages for delayed payment of contribution - imposition of damages for delayed payment - proceedings initiated after 13 years - levying damages - held, under section 85-b of the esi act, the esi authorities are entitled to levy penalty by way of damages for the delayed payment of contributions. there is no limitation prescribed under the esi act to initiate proceedings against the employer to levy damages for the delayed payment of contribution. - learned counsel sought to argue rather vehemently that in the aforesaid situation where superior judicial authorities themselves have at a subsequent point of time departed from the line of reasoning that was adopted by the division bench of this court in machaiah's case that it would be perfectly permissible to make a reference to the division bench that the matter be reconsidered in the light of the subsequent position in law. in the course of his arguments, learned counsel illustrated to me that the requirement of law which binds a single judge would effectively be completely overthrown if, what cannot be done directly is sought to be achieved indirectly. . though this is a relatively old case, it is still good law in so far it is cited with approval from time to time in various decisions of the supreme court right upto the year 1994 and it embodies the principle that the court cannot issue a writ to a company which is not statutory or having any public duty or responsibility imposed by statute. as far as the legal submission canvassed by the petitioners' learned counsel which is to the effect that this court could still hear and decide the petitions dehors the division bench judgment on the ground that a writ could issue against 'a person',i need to observe that apart from the fact that such a procedure would not be either correct or permissible, that the term 'person' as it appears in article 226 is not to be construed in the parlance of a private person or authority but will have to be read in relation to the phrase as it appears in article 226 of the constitution where a reference is to 'person' or 'authority'.the use of the word 'or' clearly indicates that the term 'person' in sum and substance and in relation to an authority means a person in ex-officio capacity and not a personal or individual status. 13. in view of this situation in law, the petitions must necessarily fail and they accordingly stand disposed of.orderm.f. saldanha, j.1. a rather unusual situation has arisen in this group of writ petitions and i have heard learned counsel appearing on both sides with regard to the aspect of procedural proprieties that arise for determination. briefly stated, the present petitioners approached this court through this group of petitions on a charge that the respondent-company, the mysore sugar company limited, mandya which had employed them in various capacities had sought to abruptly terminate their services. they contend that they were attached basically to various duties in relation to the then chairman and that the company contended that their tenure of employment was co-extensive with the term of office of that officer and that consequently, their services were being terminated. the petitioners on the other hand relied on various provisions of law but basically, approached this court in exercise of its writ jurisdiction on the ground that the action was both arbitrary and illegal. they also contended that the company had several vacancies into which they could be suitably absorbed apart from which, that appropriate sanction had been asked for from the government and that in this background, the abrupt termination is required to be stopped. the petitioners having made out a prima facie case for intervention an ad-interim order was passed restraining the respondents from relieving them of their duties.2. shortly thereafter, the company through its learned counsel not only filed its replies to the proceedings but also applied for vacating the interim orders. at that stage, the petitioners' learned counsel made serious grievance of the fact that the interim orders had not been complied with in letter and spirit whereupon, the company's learned counsel clarified that the company has no intention whatsoever to show the slightest disrespect to judicial orders and therefore, that all the petitioners were being permitted to continue with the company even though there were no job functions that could be given to them and that the company would do this until the court heard their applications for vacating the interim orders.3. the basic submission, quite apart from the merits of the case, that was canvassed on behalf of the respondent - company is with regard to the maintainability of this group of petitions. these are petitions filed under article 226 of the constitution and learned counsel for the respondents submitted by way of preliminary objection, which he has pressed very strongly, that the institution of these proceedings is not permissible in law because the respondent-company is not an authority or instrumentality of state within the meaning of article 12 of the constitution. learned counsel relied on a division bench decision of this very court in the case of p.m. machaiah v. mysore sugar company limited : ilr1991kar4208 wherein, after a detailed examination of various aspects that were argued in that matter, the division bench conclusively held that the respondent-company cannot be categorised either as an authority or instrumentality of state and that therefore, a writ petition is not maintainable against the company. in view of the fact that the division bench judgment still holds the field and more so since it pertains to the very company which we are concerned with in the present set of petitions, learned counsel submitted that the present proceedings cannot be continued and will have to be dismissed. necessarily, he contended the interim orders were also to be vacated.4. this position was seriously contested by the petitioners' learned advocate. his first submission was that even though undoubtedly the division bench judgment in machaiah's case has not been overruled or set aside so far, that a full bench of this court in the case of k.v. panduranga rao v. k.d.d.c. and ors. 1994(1) klj 149, had occasion to examine the tests that are required to be applied for purposes of deciding whether in disputed situations a particular authority or person can be designated as instrumentality of state for purposes of maintainability of the writ petition and inter alia, after considering the law on the point recorded the verdict that it is not necessary that all or everyone of the tests that were hitherto applied must be answered in the affirmative for purposes of arriving at a decision but that if some of them did apply and if substantially the respondents answered to the definition of 'instrumentality of state' that a writ would still be maintainable. it was sought to be argued before me that the ratio of the full bench decision makes a substantial departure from the line of reasoning adopted in machaiah's case by the division bench of this court. apart from the full bench decision, petitioners' learned advocate relied on several other rulings which i will briefly list below for purposes of illustrating his point that on the basis of various tests applied by the courts from time to time the earlier strictness with which the courts deal with the aspect of maintainability of a writ petition has been considerably relaxed on the one hand and the rigour watered down on the other. for this purpose, my attention was invited to a division bench decision of this court reported in : ilr1994kar2008 krishna gowda v. karnataka state co-operative apex bank ltd., as also a decision of the supreme court reported in : (1992)illj331sc chander mohan khanna v. the national council of educational researchtraining and ors. a division bench decision of the allahabad high court, reported in : air1994all182 vijai kumar ajay kumar and anr. v. steel authority of india and he has submitted that in all these cases, the courts have been liberal while entertaining a challenge against the respondents the predominant consideration being that in the case of manifest injustice, a court will not deny relief to a needy litigant only on the basis of technicalities.5. as i see it, the over all effort on the part of petitioners' learned counsel was, if i may aptly summarise, to persuade this court that even though the division bench ruling which undoubtedly binds the single judge presiding over this court, that if it is still permissible within the frame work of law tc contend that the case requires reconsideration, that the matter be referred back to the division bench for that purpose. learned counsel sought to argue rather vehemently that in the aforesaid situation where superior judicial authorities themselves have at a subsequent point of time departed from the line of reasoning that was adopted by the division bench of this court in machaiah's case that it would be perfectly permissible to make a reference to the division bench that the matter be reconsidered in the light of the subsequent position in law.6. the respondents' learned counsel seriously assailed the sanction of any such procedure. his clear cut submission was that having regard to the procedure that prevails particularly with regard to decisions and precedents in the judicial hierarchy are concerned, that a single judge of a high court short of being able to distinguish a division bench judgment in an appropriate case is obliged to follow that verdict without questioning it. in the course of his arguments, learned counsel illustrated to me that the requirement of law which binds a single judge would effectively be completely overthrown if, what cannot be done directly is sought to be achieved indirectly. learned counsel argued that regardless of what the circumstances may be if a learned single judge were to refer a matter of the present type in the face of a binding decision of the division bench relating to that very company, back to the division bench for whatever reason, that it would be tantamount to not following the division bench ruling. that situation, learned counsel pointed out, is impermissible and he therefore submitted that even though he has a valid answer to the submissions on merits put forward by the petitioners' learned counsel regarding maintainability that the correct and appropriate forum for reagitating those issues is before the division bench and not before this court.7. in this regard, respondents' learned advocate drew my attention to a direct decision of this court reported in 1985(2) k.l.j. 288 amersha v. state of karnataka and ors. a division bench of this court had occasion, in that instance, to observe that even if a learned single judge is inclined to take a different view, that he is not permitted to do so and that the only forum for reconsideration of the division bench judgment was by the division bench itself. consequently, the court held that a reference for this purpose to a division bench was not competent. a similar view has been taken by the supreme court in the management of oriental mercantile agency v. presiding officer1973(26) factory law reports 114. i need to observe here that the supreme court was basically concerned with the aspect of propriety and went on to observe :'right or wrong, that construction was binding on the learned single judge and he should have therefore declined to issue a clarification of his own. he issued a clarification suggesting that the appellate court was wrong in the construction which is placed on his judgment.... the order of the division bench howsoever being wrong, the single judge had no jurisdiction to issue a clarification which was inconsistent with the view taken by the appellate court.'this basically summarises the position in law and i need to add that judicial discipline itself requires that certain practices and procedures be adhered to in the interest of consistency and in the interest of maintaining the authority of the judicial hierarchy at different levels which under no circumstances can be departed from whatever may be the persuasion.8. the situation, as i have observed at the beginning of the judgment, as far as the present case is concerned is a little more complicated and curious than the facts that had arisen in the various decisions referred to by me. whereas, the division bench of this court has undoubtedly taken a particular view with regard to the status of the respondent-company, it is equally true that at a slightly later point of time the full bench of this very high court which is a higher forum than the division bench had occasion to take a slightly different view in its approach. that apart, the supreme court which is the apex judicial authority in the country has laid down various principles that are equally relevant for determining this issue. the only difficulty in the way of a learned single judge on whom the lot of these decisions are binding is that if he were to proceed to try and resolve the controversy, he would be offending the principle of judicial discipline because that would fly in the face of the principle that would oblige him to unquestioningly accept the view of the appeal court and would in other words be tantamount to questioning the binding decision of the division bench which he is not permitted to do. in these circumstances, therefore, the respondents' learned counsel is right in his submission that it would be improper for this court to make a reference to the division bench howsoever pressing the circumstances are.9. the second limb of the arguments canvassed by the petitioners' learned advocate is with regard to the wording of article 226 of the constitution. he places much stress on the use of the word 'person' in article 226 and he contends that there are numerous instances where the higher judicial forums have reached out to strike down injustice and have not been fettered by any technicalities in bringing to book a person against whom corrective action is necessary in the exercise of writ jurisdiction. in this regard, he relied on a series of decisions which have been listed by me below :1. : [1965]57itr349(sc) dwarkanath v. income tax officer, spl. circle 'd' ward, kanpur and anr., 2. : (1976)illj274sc rohtas industries ltd. and anr. v. rohtas industries staff union and ors., 3. : (1989)iillj324sc shri anadi mukta sadguru v. v.r. rudani and ors., 4, : (1980)illj137sc gujarat steel tubes ltd. v. gujarat steel tubes mazadoor sabha and ors., 5. 1984(1) lab i.c. 245 (madras) babian & others, 6. : (1986)iillj171sc central inland water transport corporation v. brojonath ganguby, 7. 1982(2) llj 454 (sc) peoples union of democratic rights and ors. v. union of india and ors., 8. : (1991)illj395sc delhi transport corporation v. dtc mazdoor congress and ors., 9. 1993 (2) llj 696 (sc) d.k. yadav v. jma industries ltd., 10. : (1967)illj391sc r. jeevaratnam v. state of madras, 11. 1984(2) ilr 858 (db) munichowdappa v. state of karnataka.10. the learned counsel vehemently submitted that these decisions are illustrative of the fact that a writ jurisdiction of the high court is not within a straight jacket and that it is not circumscribed to only those authorities who strictly come within the definition of article 12, that there have been instances where 'the monstrosities' of the situation demanded that the court had to stretch the jurisdiction to correct an errant person. he therefore submitted that even if the respondent contends that the company does not come within the frame work of article 12 of the constitution and even if that aspect of the matter is accepted in the light of the division bench decision in machiah's case, that it is still permissible for this court to give justice to the petitioners.11. as far as this aspect of the matter is concerned, respondents' learned advocate relied on a decision of the supreme court reported in : (1969)iillj479sc praga tools corporation v. immanual and ors.. though this is a relatively old case, it is still good law in so far it is cited with approval from time to time in various decisions of the supreme court right upto the year 1994 and it embodies the principle that the court cannot issue a writ to a company which is not statutory or having any public duty or responsibility imposed by statute. i do not propose to enter into an elaborate debate with regard to the merits of this aspect of the matter for the reason that having held that the forum to consider the subject matter of these petitions is the division bench and not the single judge, it would be inappropriate for this court to make any observations with regard to any additional aspect of the matter. as far as the legal submission canvassed by the petitioners' learned counsel which is to the effect that this court could still hear and decide the petitions dehors the division bench judgment on the ground that a writ could issue against 'a person', i need to observe that apart from the fact that such a procedure would not be either correct or permissible, that the term 'person' as it appears in article 226 is not to be construed in the parlance of a private person or authority but will have to be read in relation to the phrase as it appears in article 226 of the constitution where a reference is to 'person' or 'authority'. the use of the word 'or' clearly indicates that the term 'person' in sum and substance and in relation to an authority means a person in ex-officio capacity and not a personal or individual status. that being the position, in the light of the basic obstacle in the way of the petitioners, this court cannot go into the merits of these petitions.12. both the learned counsel before me advanced several submissions with regard to the merits of these petitions both on facts and in law. in the view that i have taken above, i refrain from either recording those submissions or from commenting on them because to my mind, those issues are within the province of the determination that will have to be done by the division bench. that of course pre-supposes the fact that the petitioners do carry the matter do the division bench and if they do not do so and choose to adopt any other legal remedies then the forum before which the dispute arises will go into the merits of the matter.13. in view of this situation in law, the petitions must necessarily fail and they accordingly stand disposed of. in the circumstances of the case, there shall be no order as to costs. i am conscious of the fact that the interim orders passed by this court are of some consequences and i will also take conginzance of the fact that the immediate vacating of those orders would necessarily frustrate the petitioners in the event of their desiring t approach the division bench. i have observed that the petitions are not being decided on merits in view of the legal position that has been presented in this group of petitions and in this view of the matter making allowance for the time that may be required for the petitioners to apply for and obtain a copy of this judgment if they desire to adopt further legal remedies, the interim orders earlier granted shall be continued for a period of six weeks.

Judgment:
ORDER

M.F. Saldanha, J.

1. A rather unusual situation has arisen in this group of Writ Petitions and I have heard learned Counsel appearing on both sides with regard to the aspect of procedural proprieties that arise for determination. Briefly stated, the present petitioners approached this Court through this group of Petitions on a charge that the Respondent-Company, the Mysore Sugar Company Limited, Mandya which had employed them in various capacities had sought to abruptly terminate their services. They contend that they were attached basically to various duties in relation to the then Chairman and that the Company contended that their tenure of employment was co-extensive with the term of office of that officer and that consequently, their services were being terminated. The petitioners on the other hand relied on various provisions of law but basically, approached this Court in exercise of its Writ Jurisdiction on the ground that the action was both arbitrary and illegal. They also contended that the Company had several vacancies into which they could be suitably absorbed apart from which, that appropriate sanction had been asked for from the Government and that in this background, the abrupt termination is required to be stopped. The petitioners having made out a prima facie case for intervention an Ad-Interim Order was passed restraining the respondents from relieving them of their duties.

2. Shortly thereafter, the Company through its learned Counsel not only filed its replies to the proceedings but also applied for vacating the Interim Orders. At that stage, the petitioners' learned Counsel made serious grievance of the fact that the Interim Orders had not been complied with in letter and spirit whereupon, the Company's learned Counsel clarified that the Company has no intention whatsoever to show the slightest disrespect to Judicial Orders and therefore, that all the petitioners were being permitted to continue with the Company even though there were no job functions that could be given to them and that the Company would do this until the Court heard their applications for vacating the Interim Orders.

3. The basic submission, quite apart from the merits of the case, that was canvassed on behalf of the respondent - Company is with regard to the maintainability of this group of Petitions. These are Petitions filed under Article 226 of the Constitution and learned Counsel for the respondents submitted by way of preliminary objection, which he has pressed very strongly, that the institution of these proceedings is not permissible in law because the respondent-Company is not an authority or instrumentality of State within the meaning of Article 12 of the Constitution. Learned Counsel relied on a Division Bench Decision of this very Court in the case of P.M. MACHAIAH v. MYSORE SUGAR COMPANY LIMITED : ILR1991KAR4208 wherein, after a detailed examination of various aspects that were argued in that matter, the Division Bench conclusively held that the respondent-Company cannot be categorised either as an authority or instrumentality of State and that therefore, a Writ Petition is not maintainable against the Company. In view of the fact that the Division Bench Judgment still holds the field and more so since it pertains to the very Company which we are concerned with in the present set of Petitions, learned Counsel submitted that the present proceedings cannot be continued and will have to be dismissed. Necessarily, he contended the interim Orders were also to be vacated.

4. This position was seriously contested by the petitioners' learned Advocate. His first submission was that even though undoubtedly the Division Bench Judgment in Machaiah's case has not been overruled or set aside so far, that a Full Bench of this Court in the case of K.V. PANDURANGA RAO v. K.D.D.C. AND ORS. 1994(1) KLJ 149, had occasion to examine the tests that are required to be applied for purposes of deciding whether in disputed situations a particular authority or person can be designated as instrumentality of State for purposes of maintainability of the Writ Petition and inter alia, after considering the law on the point recorded the verdict that it is not necessary that all or everyone of the tests that were hitherto applied must be answered in the affirmative for purposes of arriving at a decision but that if some of them did apply and if substantially the respondents answered to the definition of 'instrumentality of State' that a Writ would still be maintainable. It was sought to be argued before me that the ratio of the Full Bench Decision makes a substantial departure from the line of reasoning adopted in Machaiah's case by the Division Bench of this Court. Apart from the Full Bench Decision, petitioners' learned Advocate relied on several other Rulings which I will briefly list below for purposes of illustrating his point that on the basis of various tests applied by the Courts from time to time the earlier strictness with which the Courts deal with the aspect of maintainability of a Writ Petition has been considerably relaxed on the one hand and the rigour watered down on the other. For this purpose, my attention was invited to a Division Bench Decision of this Court reported in : ILR1994KAR2008 Krishna Gowda v. Karnataka State Co-operative Apex Bank Ltd., as also a Decision of the Supreme Court reported in : (1992)ILLJ331SC Chander Mohan Khanna v. The National Council of Educational ResearchTraining and Ors. a Division Bench Decision of the Allahabad High Court, reported in : AIR1994All182 Vijai Kumar Ajay Kumar and Anr. v. Steel Authority of India and he has submitted that in all these Cases, the Courts have been liberal while entertaining a challenge against the respondents the predominant consideration being that in the case of manifest injustice, a Court will not deny relief to a needy litigant only on the basis of technicalities.

5. As I see it, the over all effort on the part of Petitioners' learned Counsel was, if I may aptly summarise, to persuade this Court that even though the Division Bench Ruling which undoubtedly binds the Single Judge presiding over this Court, that if it is still permissible within the frame work of law tc contend that the case requires reconsideration, that the matter be referred back to the Division Bench for that purpose. Learned Counsel sought to argue rather vehemently that in the aforesaid situation where superior Judicial Authorities themselves have at a subsequent point of time departed from the line of reasoning that was adopted by the Division Bench of this Court in Machaiah's case that it would be perfectly permissible to make a Reference to the Division Bench that the matter be reconsidered in the light of the subsequent position in law.

6. The respondents' learned Counsel seriously assailed the sanction of any such procedure. His clear cut submission was that having regard to the procedure that prevails particularly with regard to Decisions and precedents in the Judicial Hierarchy are concerned, that a Single Judge of a High Court short of being able to distinguish a Division Bench Judgment in an appropriate case is obliged to follow that verdict without questioning it. In the course of his arguments, learned Counsel illustrated to me that the requirement of law which binds a Single Judge would effectively be completely overthrown if, what cannot be done directly is sought to be achieved indirectly. Learned Counsel argued that regardless of what the circumstances may be if a learned Single Judge were to refer a matter of the present type in the face of a binding Decision of the Division Bench relating to that very Company, back to the Division Bench for whatever reason, that it would be tantamount to not following the Division Bench Ruling. That situation, learned Counsel pointed out, is impermissible and he therefore submitted that even though he has a valid answer to the submissions on merits put forward by the petitioners' learned Counsel regarding maintainability that the correct and appropriate Forum for reagitating those issues is before the Division Bench and not before this Court.

7. In this regard, respondents' learned Advocate drew my attention to a direct Decision of this Court reported in 1985(2) K.L.J. 288 Amersha v. State of Karnataka and Ors. A Division Bench of this Court had occasion, in that instance, to observe that even if a learned Single Judge is inclined to take a different view, that he is not permitted to do so and that the only forum for reconsideration of the Division Bench Judgment was by the Division Bench itself. Consequently, the Court held that a Reference for this purpose to a Division Bench was not competent. A similar view has been taken by the Supreme Court in the MANAGEMENT OF ORIENTAL MERCANTILE AGENCY v. PRESIDING OFFICER1973(26) Factory Law Reports 114. I need to observe here that the Supreme Court was basically concerned with the aspect of propriety and went on to observe :

'Right or wrong, that construction was binding on the learned Single Judge and he should have therefore declined to issue a clarification of his own. He issued a clarification suggesting that the appellate Court was wrong in the construction which is placed on his judgment.... The order of the Division Bench howsoever being wrong, the Single Judge had no jurisdiction to issue a clarification which was inconsistent with the view taken by the appellate Court.'

This basically summarises the position in law and I need to add that Judicial discipline itself requires that certain practices and procedures be adhered to in the interest of consistency and in the interest of maintaining the authority of the Judicial Hierarchy at different levels which under no circumstances can be departed from whatever may be the persuasion.

8. The situation, as I have observed at the beginning of the Judgment, as far as the present case is concerned is a little more complicated and curious than the facts that had arisen in the various Decisions referred to by me. Whereas, the Division Bench of this Court has undoubtedly taken a particular view with regard to the status of the respondent-Company, it is equally true that at a slightly later point of time the Full Bench of this very High Court which is a Higher Forum than the Division Bench had occasion to take a slightly different view in its approach. That apart, the Supreme Court which is the Apex Judicial Authority in the Country has laid down various principles that are equally relevant for determining this issue. The only difficulty in the way of a learned Single Judge on whom the lot of these Decisions are binding is that if he were to proceed to try and resolve the controversy, he would be offending the principle of Judicial discipline because that would fly in the face of the principle that would oblige him to unquestioningly accept the view of the Appeal Court and would in other words be tantamount to questioning the binding Decision of the Division Bench which he is not permitted to do. In these circumstances, therefore, the respondents' learned Counsel is right in his submission that it would be improper for this Court to make a Reference to the Division Bench howsoever pressing the circumstances are.

9. The second limb of the arguments canvassed by the petitioners' learned Advocate is with regard to the wording of Article 226 of the Constitution. He places much stress on the use of the word 'person' in Article 226 and he contends that there are numerous instances where the Higher Judicial Forums have reached out to strike down injustice and have not been fettered by any technicalities in bringing to book a person against whom corrective action is necessary in the exercise of Writ Jurisdiction. In this regard, he relied on a series of Decisions which have been listed by me below :

1. : [1965]57ITR349(SC) Dwarkanath v. Income Tax Officer, Spl. Circle 'D' Ward, Kanpur and Anr., 2. : (1976)ILLJ274SC Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and Ors., 3. : (1989)IILLJ324SC Shri Anadi Mukta Sadguru v. V.R. Rudani and Ors., 4, : (1980)ILLJ137SC Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazadoor Sabha and Ors., 5. 1984(1) Lab I.C. 245 (Madras) Babian & Others, 6. : (1986)IILLJ171SC Central Inland Water Transport Corporation v. Brojonath Ganguby, 7. 1982(2) LLJ 454 (SC) Peoples Union of Democratic Rights and Ors. v. Union of India and Ors., 8. : (1991)ILLJ395SC Delhi Transport Corporation v. DTC Mazdoor Congress and Ors., 9. 1993 (2) LLJ 696 (SC) D.K. Yadav v. JMA Industries Ltd., 10. : (1967)ILLJ391SC R. Jeevaratnam v. State of Madras, 11. 1984(2) ILR 858 (DB) Munichowdappa v. State of Karnataka.

10. The learned Counsel vehemently submitted that these Decisions are illustrative of the fact that a Writ Jurisdiction of the High Court is not within a straight jacket and that it is not circumscribed to only those authorities who strictly come within the definition of Article 12, that there have been instances where 'the monstrosities' of the situation demanded that the Court had to stretch the jurisdiction to correct an errant person. He therefore submitted that even if the respondent contends that the Company does not come within the frame work of Article 12 of the Constitution and even if that aspect of the matter is accepted in the light of the Division Bench Decision in Machiah's case, that it is still permissible for this Court to give Justice to the petitioners.

11. As far as this aspect of the matter is concerned, respondents' learned Advocate relied on a Decision of the Supreme Court reported in : (1969)IILLJ479SC Praga Tools Corporation v. Immanual and Ors.. Though this is a relatively old case, it is still good law in so far it is cited with approval from time to time in various Decisions of the Supreme Court right upto the year 1994 and it embodies the principle that the Court cannot issue a Writ to a Company which is not statutory or having any public duty or responsibility imposed by statute. I do not propose to enter into an elaborate debate with regard to the merits of this aspect of the matter for the reason that having held that the Forum to consider the subject matter of these Petitions is the Division Bench and not the Single Judge, it would be inappropriate for this Court to make any observations with regard to any additional aspect of the matter. As far as the legal submission canvassed by the petitioners' learned Counsel which is to the effect that this Court could still hear and decide the Petitions dehors the Division Bench Judgment on the ground that a Writ could issue against 'a person', I need to observe that apart from the fact that such a procedure would not be either correct or permissible, that the term 'person' as it appears in Article 226 is not to be construed in the parlance of a private person or authority but will have to be read in relation to the phrase as it appears in Article 226 of the Constitution where a reference is to 'person' or 'authority'. The use of the word 'or' clearly indicates that the term 'person' in sum and substance and in relation to an authority means a person in ex-officio capacity and not a personal or individual status. That being the position, in the light of the basic obstacle in the way of the petitioners, this Court cannot go into the merits of these Petitions.

12. Both the learned Counsel before me advanced several submissions with regard to the merits of these Petitions both on facts and in law. In the view that I have taken above, I refrain from either recording those submissions or from commenting on them because to my mind, those issues are within the province of the determination that will have to be done by the Division Bench. That of course pre-supposes the fact that the petitioners do carry the matter do the Division Bench and if they do not do so and choose to adopt any other legal remedies then the Forum before which the dispute arises will go into the merits of the matter.

13. In view of this situation in law, the Petitions must necessarily fail and they accordingly stand disposed of. In the circumstances of the case, there shall be no order as to costs. I am conscious of the fact that the interim orders passed by this Court are of some consequences and I will also take conginzance of the fact that the immediate vacating of those orders would necessarily frustrate the petitioners in the event of their desiring t approach the Division Bench. I have observed that the Petitions are not being decided on merits in view of the legal position that has been presented in this group of Petitions and in this view of the matter making allowance for the time that may be required for the petitioners to apply for and obtain a copy of this Judgment if they desire to adopt further legal remedies, the Interim Orders earlier granted shall be continued for a period of six weeks.