Jatya Pal Singh vs Union of India - 2013 Supreme(SC) 384

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(SC) 384

Supreme Court of India
SURINDER SINGH NIJJAR, ANIL R. DAVE, JJ.
Jatya Pal Singh & Others
Versus
Union of India & Others
Civil Appeal No. 2147 of 2010 with Civil Appeal No.3933 of 2013 (Arising out of S.L.P.(C) No. 4619 of 2011 With Civil Appeal No. 425 Of 2012 With Writ Petition (C) No. 689 of 2007 With Civil Appeal No. 5740 Of 2012
Decided on : 17-04-2013

Headnote:
Indian Telegraph Act, 1885 - Section 4 - Human Rights Act 1998 - Section 6(3)(b) – employment - appointment may be terminated - Petition No.2139 of 2007 titled as Mahant Pal Singh vs. Union of India dismissed in limine by the Division Bench on 7th September, 2009. Civil Appeal No.3933 of 2013 @ Special Leave Petition (C) No.4619 of 2011 titled as M.P.Singh vs. Union of India & Ors. has been filed challenging the aforesaid order of the Division Bench. Writ Petition No.2652 of 2007 titled as Jatya Pal Singh & Ors. vs. Union of India & Ors. was dismissed in limine by the Division Bench on 8th September, 2009 in view of the order dated 7th September, 2009 passed in Writ Petition No.2139 of 2007. The aforesaid order has been impugned by the appellants (writ petitioners in the High Court) Jatya Pal Singh & Ors. vs. Union of India & Ors. in C.A.No.2147 of 2010.
Proceedings in the Delhi High Court :-
4. Ten writ petitions were filed by the former employees of the Videsh Sanchar Nigam Limited –Held, Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd’s of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to “recognize the realities of executive power” and not allow “their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted.” Non-governmental bodies such as these are just as capable of abusing their powers as is government case, as noticed earlier, all telecom operators are providing commercial service for commercial considerations. Such an activity in substance is no different from the activities of a bookshop selling books. It would be no different from any other amenity which facilitates the dissemination of information or DATA through any medium. We are unable to appreciate the submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing the fundamental rights under Article 21(1)(a) of the Constitution. The recipients of the service of the telecom service voluntarily enter into a commercial agreement for receipt and transmission of information. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. Right to education is a fundamental right for children upto the age of 14 as provided in Article 21A. Therefore, reliance placed by the learned counsel for the appellants on the judgment of this Court in Andi Mukta (supra) would be of no avail. In any event, in the aforesaid case, this Court was concerned with the non-payment of salary to the teachers by the Andi Mukta Trust aforesaid documents, however, would show that VSNL had merely promised not to retrench any employee who had come from OCS for a period of two years from 13th February, 2002. Such a condition, in our opinion, would not clothe the same with the characteristic of a public duty which the employer was bound to perform. The employees had individual contacts with the employer. In case the employer is actually in breach of the contract, the appellants are at liberty to approach the appropriate forum to enforce their rights – appeal dismissed

Judgment :-

Surinder Singh Nijjar, J.

1. Leave granted in SLP(C) No.4619 of 2011.

2. This judgment will dispose of a group of appeals, details of which are given hereunder, as they raise only one question of law :

Proceedings before the Bombay High Court :-

3. Writ Petition No.2139 of 2007 titled as Mahant Pal Singh vs. Union of India dismissed in limine by the Division Bench on 7th September, 2009. Civil Appeal No.3933 of 2013 @ Special Leave Petition (C) No.4619 of 2011 titled as M.P.Singh vs. Union of India & Ors. has been filed challenging the aforesaid order of the Division Bench. Writ Petition No.2652 of 2007 titled as Jatya Pal Singh & Ors. vs. Union of India & Ors. was dismissed in limine by the Division Bench on 8th September, 2009 in view of the order dated 7th September, 2009 passed in Writ Petition No.2139 of 2007. The aforesaid order has been impugned by the appellants (writ petitioners in the High Court) Jatya Pal Singh & Ors. vs. Union of India & Ors. in C.A.No.2147 of 2010.

Proceedings in the Delhi High Court :-

4. Ten writ petitions were filed by the former employees of the Videsh Sanchar Nigam Limited (VSNL). The common question of law raised in all the appeals relates to the very maintainability of the writ petitions. VSNL had raised a preliminary objection that a writ petition would not be maintainable against it as it is neither a State within the meaning of Article 12 of the Constitution of India nor is it performing any public function. The learned Single Judge accepted the aforesaid preliminary objection and dismissed the writ petitions by judgment and order dated 29th August, 2011. Letters Patent Appeal No.924 of 2011 challenging the aforesaid order was dismissed by the Division Bench on 14th November, 2011. LPA Nos. 930 of 2011 and 931 of 2011 were dismissed by the common order dated 15th November, 2011.

4A. Only two of the original writ appellants have approached this Court in the civil appeals against the judgment of the learned Single Judge and the Division Bench of the Delhi High Court by way of civil appeals. These are Ram Prakash vs. Union of India & Ors. in C.A.No.5740 of 2012 and Vijay Thakur vs. V.S.N.L. and Anr. in C.A.No.425 of 2012.

5. For the purpose of this order, we shall make a reference to the facts as pleaded in C.A.No.2147 of 2010. All the appellants in writ petitions had been working in the Ministry of Communication, in particular, Department of Overseas Communication Service (OCS) from 1st March, 1971 onwards. Their dates of appointment on various posts are as under :

6. Appellant Nos. 1 and 2 were appointed as Assistant Engineer on 16th May 1983 and 1st September, 1983, respectively. Appellant Nos. 3 and 4 were appointed as Junior Technical Assistant on 1st March, 1971 and 13th January, 1976 and appellants 5 and 6 were appointed on 8th January, 1980. During their continuous service with respondent No.1, they had earned promotions at due time on merit. They have a clean record of service. Till 31st March, 1986, they were holding responsible posts in the OCS.

Background of VSNL:

A) Origin of Overseas Communication Service (in short OCS) –

7. On 1st of January, 1947 ‘Indian Radio and Telecommunication company Ltd.’ a Private Company operating India’s external telecommunication service was taken over by the Govt. along with its employees on the terms and conditions as they had with the private company.

8. The Govt. created a department in ministry of telecommunication known as Overseas Communication Service (OCS) that dealt communication of India subjects with the rest of the world.

9. The OCS department of Ministry of telecommunication continued till 31st of March, 1986.

B) Conversion of OCS into VSNL -

10. Ministry of Communication took a decision to convert its OCS Department into a Public Sector Corporation (PSC). A notification to this effect was issued on 19th March, 1986 and the Corporation was named as VSNL. Accordingly, w.e.f. 1st April, 1986, all international telecommunication services of

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