THE HONOURABLE MR v. Union of IndiaRep.by its Secretary to Government,Ministry of Textiles, Udyog BhawanNew Delhi

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 15.02.2007THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.Nos.953 to 955 of 2006& W.P.M.P.No.1098 to 1100 of 2006N.Viswanathan... Petitioner in W.P.No.953/2006P.Krishnan... Petitioner in W.P.No.954/2006N.H.Subramanian... Petitioner in W.P.No.955/2006Vs.1.Union of IndiaRep.by its Secretary to Government,Ministry of Textiles, Udyog BhawanNew Delhi. 2.The Cotton Textile Export Promotion Council,Rep.by Deputy Director (Administration)Registered Office at Engineering Center,5th floor 9 Mathew Road, Opera House,Mumbai 400 004. ... Respondents in the W.Ps.PRAYER IN ALL THE W.Ps.:These writ petitions are filed under Article 226of the Constitution of India to issue a writ of Certiorarified Mandamus,calling for the records from the 2nd respondent in connected with theimpugned termination order No.G/075, G/076 and G/074 respectively, dated01.03.2005 and quash the same and consequently direct the respondents toeither reinstate the petitioner with all attendant service benefits likecontinuity of service, etc., or extend the benefits under the VoluntaryRetirement Scheme to the petitioners. For Petitioners: Mr.Venkatachalapaty, SC for Mr.M.SriramFor Respondents: Mr.S.R.Rajagopal for R2 Mr.Patty B.Jaganathan for R1O R D E RIn the Writ petition in W.P.No.953 of 2006 the second respondent is acompany registered under the Companies Act, with the object of promoting,supporting and protecting, maintaining and increasing the export of clothand yarn. The petitioner, who was working as Lower Division Clerk/Data https://hcservices.ecourts.gov.in/hcservices/ Entry Operator under the second respondent from 19.10.1990, was promotedas Upper Division Clerk on 26.06.2000. On the basis of the agreemententered by the Government of India with the World Trade Organisation,since direct export trade has been restricted, the petitioner’s serviceswere terminated by the second respondent on 01.03.2005 on the basis thatthe second respondent is desirous of closing the Madras unit. The secondrespondent has earlier introduced a Voluntary Retirement Scheme and atthat time the petitioner has not opted for the same. According to thepetitioner, the appointment is on all India basis and the vacancies areavailable in other places, therefore, the termination is back. 2. It is also admitted case that the petitioner has accepted theterminal benefits given by the second respondent, however, he was forcedto do so, according to the petitioner. In view of the same, when thesecond respondent has introduced Voluntary Retirement Scheme, theemployees of Madras unit have made joint representation, there was noreply. 3. Likewise, the petitioner in W.P.No.954 of 2006 was appointed asPeon in the Coimbatore Office of the second respondent on 08.06.1970 andtransferred to Chennai during 1983 and was promoted as Lower DivisionClerk during 1996. He was also terminated from service on 01.03.2005. 4. In W.P.No.955 of 2006, the petitioner was working as LowerDivision Clerk / Typist in Chennai office of the the second respondentfrom 01.09.1988 and promoted as Stenographer/UDC from November 1992 and hewas also terminated on 01.03.2005. It is also admitted that out of 7persons working in the second respondent company, the above 3 persons havefiled the writ petitions. 5. It is also admitted that the all the 7 employees were terminatedon the basis that the business in the second respondent is closed and theclosure compensation also settled, as it is seen in the order of thesecond respondent dated 24.02.2005. By a representation, dated 17.03.2005in fact the petitioners have requested the Executive Director of thesecond respondent at Mumbai to pay a better compensation as that of thestaff in Mumbai and Delhi office. That apart, they have also beendemanding about the payment of closure compensation and the same has infact been paid. Even in June and July 2005 by a representation dated26.11.2005, the petitioners and the employees at Madras unit of the secondrespondent have been claiming the settlement of compensation. The case ofthe petitioners is that after the petitioners were terminated on31.03.2005, the Voluntary Retirement Scheme was implemented in November2005, which is only with an ulterior motive. 6. The second respondent has filed counter affidavit in all thesecases. The very maintainability of the writ petitions are in question, onthe basis that the second respondent is only a company registered under https://hcservices.ecourts.gov.in/hcservices/ Section 26 of the Indian Companies Act, and therefore, it is not a "state"within the meaning of Article 12 of the Constitution of India andtherefore, the writ petitions are not maintainable. It is the furthercase of the second respondent that the petitioners have alternativeefficacious remedy available under the Industrial Disputes Act.Therefore, according to the second respondent the writ petitions are notmaintainable. 7. It is also the case of the second respondent that the VoluntaryRetirement Scheme was introduced in 2003, the petitioners have not optedfor the same. The writ petitions are filed belatedly only to extract moremoney from the second respondent. The second respondent also would submitthat the second respondent has complied with the provisions of theIndustrial Disputes Act, and paid the entire compensation due to thepetitioners and the petitioners have also accepted the same. In view ofthe same, the writ petitions are liable to be dismissed. 8. I have heard the learned Senior counsel for the petitioners andalso learned counsel appearing for the second respondent. 9. The fact that the second respondent is a company registered underthe Companies Act, is not in dispute. It is not even the case of thepetitioners that the Government has got any control over the secondrespondent, inasmuch as the second respondent is a private company. Inview of the above said admitted position that the second respondent is nota "state", there is absolutely no difficulty to come to the conclusionthat the writ petitions are not maintainable under Article 226 of theConstitution of India, inasmuch as the Hon’ble Apex court has laid downthe dictum to find out as to whether there was an effective control of theGovernment or there is any public element involved, holding that thereshould be an effective administrative, functional and financial control ofthe Government for the purpose of making an organisation as a "State", aslaid down in Pradeep Kumar Biswas and others Vs. Indian Institute ofChemical Biology and others reported in 2002(2) CTC 474. On the facts andcircumstances of the case, there is absolutely no difficulty to come tothe conclusion that the writ petitions are not maintainable. 10. That apart, as rightly pointed out by the learned counsel forthe second respondent that it is not as if the petitioners are not havingany remedy available. A reference to the entire communication show thatthey have been asking for better compensation. If that be so certainlythe remedy available to the employees is under the Industrial DisputesAct. When an effective and alternative remedy is available, the writjurisdiction cannot be invoked, which has been an established law as ithas been approved in the latest judgement of the Hon’ble Apex Court inA.P.Foods Vs. S.Samuel and others reported 2006(5) SCC 469, holding https://hcservices.ecourts.gov.in/hcservices/ "6. In a catena of decisions it has been held that a writpetition under Article 226 of the Constitution of India shouldnot be entertained when the statutory remedy is available underthe Act, unless exceptional circumstances are made out."11. On the facts and circumstances of the case, as I have statedearlier, there is an effective alternative remedy available under thelabour legislation, as it is stated by the second respondent in thecounter affidavit. Hence, the writ petitions fail and the same aredismissed. However, with a liberty to the petitioners to approachappropriate forum. No Costs. Consequently, the connected M.Ps. areclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnbjTo1.The Secretary to Government,Union of IndiaMinistry of Textiles, Udyog BhawanNew Delhi. 2.The Deputy Director (Administration)The Cotton Textile Export Promotion Council,Registered Office at Engineering Center,5th floor 9 Mathew Road, Opera House,Mumbai 400 004. 3 cc To Mr.S.R.Rajagopal, Advocate, SR.9256 to 9258. W.P.Nos.953 to 955 of 2006 & W.P.M.P.No.1098 to 1100 of 2006 KA(CO)RVL 21.02.2007