Kumar Panda v. Lafarge India Pvt. Ltd.

Mr.Sanjay Joshi, Lafarge tndia Pvt. Ltd., Local Office, Plant Operator, Arasmeta Cement Plant, Gopal Nagar, District Janjgir-Champa (C.G.) WRJT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA .-•^" ^ 5^ f8-&'^ mOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 2157 of2012 PETITIONER Ashok Kumar Panda: RESPONDENTS VERSUS Regional Head, Lafarge India Pvt. Ltd. & Others. WRIT PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF DSH3IA SB: Hon'ble Shri Satish K. AgnihotrLJ. Present: Smt. Renu Kochar, Advocate for the petitioner. Shri Bhaskar Payasi, Advocate for the respondents. ORDER (Passed on 18th day ofJune, 2012) Challenge in this petition is to the order dated 31.05.2012 (Annexure P/10) whereby the petitioner, working as Assistant General Manager, Mines, in the respondent company, has been terminated from service w.e./ 07.06.2012. Ms. Kochar, leamed counsel appearing for the petitioner submits that the petitioner was appointed on regular post of Mines Manager, by the predecessor company ;.e, Raymond Cement Works by order dated 18.11.1986 (Aimexure P/l). The petitioner was promoted as Senior Mines Manger by order dated 09.04.2002 (Annexure P/5). The petitioner perfonned his duties with utmost sincerity and dedication. He was subjected to frequent transfers in a span of six years. All of a sudden, after serving the respondent company, which was taken over by respondent-company -w.e.f. the present petitioner was 31.05.2012 w.e.f. 07.06.2012 which is against terminated from service by order dated

19.01.2011, the basic principles of natural justice as he was never given any show cause notice or any reason for terminating him from service. On query, asto how a writ petition is.maintainable against a private company, Ms. Kochar relies on a decision of Supreme - Court in Central Inland Water Transport Corporation Ltd. & 3^Z ^-s Another v. Brojonath Ganguly & Another , L.I.C. oflndia & Another v. Consumer Education & Research Centre & Others . The petitioner, in his petition, has not placec} any document to show that the respondent-company is performing any public duty as provided under Article 12 ofthe Constitution oflndia and admittedly, the respondent-company is a private company. A writ petition under Article 226 ofthe Constitution oflndia is maintainable authority which is against either Govemment or Government agency or instrumentality of the State within the meaning ofArticle 12 ofthe Constitution. The respondents herein, who are employer are neither govemment agency nor the State instrumentality and also does not perform any govermnental function or public duty. Thus, this petition is not maintainable. A common thread running into the several decisions passed by the Supreme Court lays down the ratio that any writ petition is maintainable only against a person or authority which falls within the definition of State or its insto'umentality as provided under Article 12 ofthe Constitution. This is a case where the

5. in his petitioner does not dispute respondents-company is a private company and has no element of public duty or comes within the meaning of Govemment, Govemment agency or any local instrumentality or argument authority.

6. In Central Inland Water Transport Corporation Ltd. (supra), wherein the facts of the case as in the said case, the Supreme Court observed that the Central Inland Water Transport Corporation was an instrumentality or agency of the State, however, the same was registered as Govemment Company as defined under section 617 of the Companies Act. Thus, carrying out govemmental activity and governmental fimctions are of vital importance to decide asto whether Corporation was "State" within the meaning of Article 12 of the SK. 1986 SC 1571 AIR 1995 SC,1811 3 A? ^' ^' ^^ Constitution. Accordingly, Central Corporation Ltd. was held as "State" by the Supreme Court. Inland Water Transport

7. The decision of the Supreme Court, in tf.I.C. of India & Another (supra), relied on by Ms. Kochar, is not relevant to the facts ofthe case.

8.- The Supreme Coiirt, in Chander Mohan Ktianna v. The National Council of Education Research & Training & Others , while holding that the NCERT is not a State under Article 12 of the Constitution of India as the same does not satisfy the requirement of'State", observed as under: "2. There are only general principles but not exhaustive test to determine whether a body is an insta-umentality or agency ofthe Govemment. Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are insfanmentalities or agencies of the Govemment and those functions, which are not. The powers, finances and control of the Govemment are some of the indicatmg factors to answer the question whether a body is "State: or not. Each case should be handled with care and caution. Where the fmancial assistance from the State is so much as to meet almost entire expenditure of the mstitution, or the share capita of the corporation is completely held by the it would govemment, indication of the body being impregnated with govemmental character. It may be a relevant if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State Control may afford an indication. If the functions of the institution are of public importance aad related to govemmental it would also be a relevant • functions, factor. These are merely indicative indicia and are by no means conclusive or clinching in any case. (See (i) Sukhdev Singh v. Bhagat Ram, (1975) 1 SCC 421: (AIR 1975 SC 133 1); (ii) R.D.Shetty v. Intemational Airport Aufhority, (1979) 3 SCC 489; (AIR 1979 SC 1628; (iii) Ajay afford factor AIR 1992 SC 76 ^fe.l. r?^? ^' .€ 3^-