R. Thandavarayan Vs. Southern Petrochemical Industries Corporation Ltd. and ors. - Court Judgment

Excerpt:
- orderar. lakshmanan, j.1. the above writ petition has been filed to call for the records on the file of the first respondent in connection with the order passed in ref. pers/pf.330/95/632, dated 3.8.1995 and quash the same and direct the respondents to release the housing documents and give service certificate and relieving order in favour of the petitioner by adjusting the amount alleged to be due from the petitioner with exgratia amount as sanctioned to the other employees under similar circumstances by issuing a writ or certiorarified mandamus or any other appropriate writ, order of direction in the nature of a writ or any other appropriate relief as this hon'ble court may deem fit in the circumstances of the case.2. the petitioner joined the services of the first respondent-corporation in the year 1976 and on the date of relieving his service he was working as senior accountant at the regional office, cuddalore. since the petitioner's request to post him at madras or cuddalore was turned down by the management, he was constrained to forward a letter dated 3.11.1994 to the vice president of the first respondent-corporation, requesting him to relieve him on voluntary medical grounds. the petitioner's letter dated 3.11.1994 was accepted by the management. the petitioner had sought for exgratia payment and other emoluments due to him. the management sent a reply stating that the service certificate should be issued to him only after settling the housing loan, vehicle loan and other dues which are payable by the petitioner, the petitioner was also asked to settle the housing loan with interest calculated at 26% per annum till the date of settlement. the petitioner made further representations and requested the management to waive the interest and also to pay the bonus etc. the management sent a letter asking the petitioner to settle the outstanding dues of rs. 73,508 with interest calculated at 26% per annum from 2.12.1994, the date of his relieving. the petitioner made further representation. according to him, the act of the respondents is arbitrary and unreasonable being violative of articles 14 to 16 of the constitution of india. the respondent have not fixed any guidelines or norms in sanctioning exgratia payment to the employees. since the act of the respondent is against the principles of natural justice and fair play, the petitioner has filed the above writ petition to call for the records on the file of the first respondent in connection with the order passed in ref.pers/pf. 330/95/632 dated 3.8.1995 and to quash the same and direct the respondents to release the housing documents and give service certificate and relieving order in favour of the petitioner by adjusting the amount alleged to be due from him with exgratia amount as sanctioned to the other employees under similar circumstances.3. when the matter came up for admission, this court raised the issue of maintainability of the writ petition. nothing has been stated in the affidavit filed in support of the writ petition in regard to the nature of the company, its structure and its constitution etc. however, the counsel for the petitioner argued that the first respondent company should be treated as a government company, where the state is holding major shares and rest of the shares are held by the individuals. it is further argued that since the government have nominated some of its officials as members of the board of directors, the company has to be construed as a government company and therefore, the company would acquire the character of the state or its instrumentality. i am unable to countenance the contention of the counsel for the petitioner on the question of maintainability. the petitioner has not placed before this court any material to show what is the actual share holding by the state government or the shareholding by the individuals and the nature and constitution of the board. even assuming that the state is holding more than 50% of the shares and the rest of the shares are held by the individuals, it cannot be considered, in my opinion, as an authority or an instrumentality of the state merely on the ground that the state wields more control than other shareholders. it is settled law that corporations registered under the companies act or which are creations of some statutory provisions cannot be considered to be the departments of the government or the agents of the government in spite of the fact that the government may have voice in the management, and even control, both administrative and financial over the affairs of such companies or corporations. the government exercising control by itself will not constitute deep and pervasive control on the functioning of the company so as to make it an instrumentality of the government.4. it is settled law that against a private institution no writ of certiorari or mandamus can be issued. admittedly, the management of the first respondent was not a statutory body since not created by or under a statute. if the management of the southern petrochemical industries corporation ltd. is purely a private body with no public duty, the order passed by such institutions cannot be quashed or a mandamus with issue.5. the counsel for the petitioner cited a division bench decision reported in surya rao v. madras refineries limited : (1984)2mlj318 , wherein the division bench held that the government company can be regarded as an authority for the purpose of article 12 of the constitution of india, if it has the attributes of an instrumentality or agency of the government. this apart, the division bench has not expressed any opinion to the maintainability of the writ petition against the madras refineries ltd. that it cannot fall within the ambit of article 12 of the constitution of india, on the ground that the materials disclosed are not adequate for the division bench to express any categoric opinion as to whether the well laid down tests in this behalf are satisfied or not. consequently, the division bench has not expressed any opinion because they have decided the matter on merits as the parties did not shirk to project their pleas on merits also.6. the counsel for the petitioner has not raised any other contention except the above said contention. the writ petition is therefore liable to be dismissed on the question of maintainability. in my opinion, the petitioner has vexatiously filed the above writ petition in this court by invoking its extraordinary original jurisdiction under article 226 of the constitution of india. the writ petition is therefore dismissed at the admission stage.

Judgment:
ORDER

AR. Lakshmanan, J.

1. The above writ petition has been filed to call for the records on the file of the first respondent in connection with the order passed in Ref. Pers/PF.330/95/632, dated 3.8.1995 and quash the same and direct the respondents to release the housing documents and give service certificate and relieving order in favour of the petitioner by adjusting the amount alleged to be due from the petitioner with exgratia amount as sanctioned to the other employees under similar circumstances by issuing a writ or certiorarified mandamus or any other appropriate writ, order of direction in the nature of a writ or any other appropriate relief as this Hon'ble Court may deem fit in the circumstances of the case.

2. The petitioner joined the services of the first respondent-Corporation in the year 1976 and on the date of relieving his service he was working as Senior Accountant at the Regional Office, Cuddalore. Since the petitioner's request to post him at Madras or Cuddalore was turned down by the management, he was constrained to forward a letter dated 3.11.1994 to the Vice President of the first respondent-Corporation, requesting him to relieve him on voluntary medical grounds. The petitioner's letter dated 3.11.1994 was accepted by the management. The petitioner had sought for exgratia payment and other emoluments due to him. The management sent a reply stating that the service certificate should be issued to him only after settling the housing loan, vehicle loan and other dues which are payable by the petitioner, The petitioner was also asked to settle the housing loan with interest calculated at 26% per annum till the date of settlement. The petitioner made further representations and requested the management to waive the interest and also to pay the bonus etc. The management sent a letter asking the petitioner to settle the outstanding dues of Rs. 73,508 with interest calculated at 26% per annum from 2.12.1994, the date of his relieving. The petitioner made further representation. According to him, the act of the respondents is arbitrary and unreasonable being violative of Articles 14 to 16 of the Constitution of India. The respondent have not fixed any guidelines or norms in sanctioning exgratia payment to the employees. Since the act of the respondent is against the principles of natural justice and fair play, the petitioner has filed the above writ petition to call for the records on the file of the first respondent in connection with the order passed in Ref.Pers/PF. 330/95/632 dated 3.8.1995 and to quash the same and direct the respondents to release the housing documents and give service certificate and relieving order in favour of the petitioner by adjusting the amount alleged to be due from him with exgratia amount as sanctioned to the other employees under similar circumstances.

3. When the matter came up for admission, this Court raised the issue of maintainability of the writ petition. Nothing has been stated in the affidavit filed in support of the writ petition in regard to the nature of the company, its structure and its constitution etc. However, the counsel for the petitioner argued that the first respondent company should be treated as a Government company, where the State is holding major shares and rest of the shares are held by the individuals. It is further argued that since the Government have nominated some of its officials as members of the Board of Directors, the company has to be construed as a Government company and therefore, the company would acquire the character of the State or its instrumentality. I am unable to countenance the contention of the counsel for the petitioner on the question of maintainability. The petitioner has not placed before this Court any material to show what is the actual share holding by the State Government or the shareholding by the individuals and the nature and constitution of the Board. Even assuming that the State is holding more than 50% of the shares and the rest of the shares are held by the individuals, it cannot be considered, in my opinion, as an authority or an instrumentality of the State merely on the ground that the State wields more control than other shareholders. It is settled law that Corporations registered under the Companies Act or which are creations of some statutory provisions cannot be considered to be the departments of the Government or the agents of the Government in spite of the fact that the Government may have voice in the management, and even control, both administrative and financial over the affairs of such companies or corporations. The Government exercising control by itself will not constitute deep and pervasive control on the functioning of the company so as to make it an instrumentality of the Government.

4. It is settled law that against a private institution no writ of certiorari or mandamus can be issued. Admittedly, the management of the first respondent was not a statutory body since not created by or under a statute. If the management of the Southern Petrochemical Industries Corporation Ltd. is purely a private body with no public duty, the order passed by such institutions cannot be quashed or a mandamus with issue.

5. The counsel for the petitioner cited a Division Bench decision reported in Surya Rao v. Madras Refineries Limited : (1984)2MLJ318 , wherein the Division Bench held that the Government company can be regarded as an authority for the purpose of Article 12 of the Constitution of India, if it has the attributes of an instrumentality or agency of the Government. This apart, the Division Bench has not expressed any opinion to the maintainability of the writ petition against the Madras Refineries Ltd. that it cannot fall within the ambit of Article 12 of the Constitution of India, on the ground that the materials disclosed are not adequate for the Division Bench to express any categoric opinion as to whether the well laid down tests in this behalf are satisfied or not. Consequently, the Division Bench has not expressed any opinion because they have decided the matter on merits as the parties did not shirk to project their pleas on merits also.

6. The counsel for the petitioner has not raised any other contention except the above said contention. The writ petition is therefore liable to be dismissed on the question of maintainability. In my opinion, the petitioner has vexatiously filed the above writ petition in this Court by invoking its extraordinary original jurisdiction under Article 226 of the Constitution of India. The writ petition is therefore dismissed at the admission stage.