1. Former employees challenged service conditions via writ petitions against a government-owned company which subsequently underwent privatization during the pendency of the proceedings. (Para 2 , 3 , 4 , 5 )
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2024 Supreme(SC) 476
SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Mr. R.S. Madireddy And Anr. Etc. – Appellants
Versus
Union of India & Ors. Etc. – Respondents
Civil Appeal No (s). 6473 of 2024 (Arising out of Special Leave Petition(C) No(s).23441-23444 of 2022) With Civil Appeal No(s). 6474 of 2024 (arising out of Special Leave Petition (C) No(s). 12221 of 2023), Civil Appeal No(s). 6475 of 2024 (arising out of Special Leave Petition (C) No(s). 22777 of 2023)
Decided On : 16-05-2024
Important Points
IMPORTANT POINTS
Writ Jurisdiction – Issue about exercise of extra-ordinary writ jurisdiction under Article 226 of Constitution of India would arise only on date when writ petitions were taken up for consideration and decision – Where employer had been disinvested and had assumed character of a private entity not performing any public function, High Court could not have exercised extra-ordinary writ jurisdiction to issue a writ to such private entity.
Writ Jurisdiction – Issue about exercise of extra-ordinary writ jurisdiction under Article 226 of Constitution of India would arise only on date when writ petitions were taken up for consideration and decision – Where employer had been disinvested and had assumed character of a private entity not performing any public function, High Court could not have exercised extra-ordinary writ jurisdiction to issue a writ to such private entity.
Subject
Constitutional Law - Writ Jurisdiction
Act Referred
Headnote
Constitution of India – Articles 226 and 12 – Writ Jurisdiction – Issue about exercise of extra-ordinary writ jurisdiction under Article 226 of Constitution of India would arise only on date when writ petitions were taken up for consideration and decision – Respondent (AIL)-employer was a government entity on the date of filing of writ petitions, which came to be decided after a significant delay by which time company had been disinvested and taken over by a private player – Since, employer had been disinvested and had assumed character of a private entity not performing any public function, High Court could not have exercised extra-ordinary writ jurisdiction to issue a writ to such private entity – Division Bench has taken care to protect rights of appellants to seek remedy and it cannot be said that appellants have been non-suited in the case – It is only that appellants would have to approach another forum for seeking their remedy – Delay in disposal of writ petitions could have been a ground to continue with and maintain writ petitions because High Court where writ petitions were instituted could not have issued a writ to private respondent which had changed hands in intervening period – View taken by Division Bench of Bombay High Court in denying equitable relief to appellants herein and relegating them to approach appropriate forum for ventilating their grievances is the only just and permissible view. (Paras 38, 39 and 40)
Facts of the case:
Questions of law presented for adjudication of this Court are:
(i) Whether respondent No.3(AIL) after having been taken over by a private corporate entity could have been subjected to writ jurisdiction of the High Court?
(ii) Whether appellants herein could have been non-suited on account of the fact that during pendency of their writ petitions, nature of the employer changed from a Government entity to a private entity?
(iii) Whether the delay in disposal of the writ petition could be treated a valid ground to sustain claim of the appellants even against the private entity?
Findings of Court:
No reason to take a different view from one taken by Division Bench of Bombay High Court in sustaining preliminary objection qua maintainability of writ petitions preferred by appellants and rejecting the same as being not maintainable.
In case appellants choose to approach appropriate forum for ventilating their grievances as per law in light of the observations made by the Division Bench of Bombay High Court, Section 14 of Limitation Act, 1963 shall come to the rescue insofar as the issue of limitation is concerned.
Result : Appeals dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
Advocates appeared:
For the Petitioners: Mr. Sanjay Singhavi, Sr. Adv., Mr. Sandeep Sudhakar Deshmukh, AOR, Ms. Rohini Thyagarajan, Adv., Ms. Shanvi Punamiya, Adv., Mr. Nishant Sharma, Adv., Mr. Akshay Arora, Adv., Ms. Nupur Kumar, AOR, Mr. Karan Nagrath, Adv., Mr. Ambuj Tiwari, Adv., Ms. Niharika Tanwar, Adv.
For the Respondents: Mr. Mohit Singh, AOR, Dr. Abhishek Manu Singhvi, Sr. Adv., Mr. S. Niranjan Reddy, Sr. Adv., Mr. Avishkar Singhvi, Adv., Ms. Rukhmini Bobde, Adv., Mr. Amit Kumar Mishra, Adv., Mr. Azeem Samuel, Adv., Ms. Mitakshara Goyal, Adv., Mr. L Nidhiram Sharma, Adv., Mr. Kaustubh Seth, Adv., Mr. Akhil Kumar Kulshrestha, Adv., Ms. Akhila, Adv., Mr. Shivam Singh, Adv., Ms. Yashika Nagpal, Adv., Mr. Vivek Kumar, Adv., Mr. Naved Ahmed, Adv., Mr. Amlaan Kumar, Adv., Mr. Kunal Chatterji, AOR, Ms. Aishwarya Bhati, ASG, Ms. B.L.N. Shivani, Adv., Ms. Manisha Chava, Adv., Mr. Santosh Kumar Pandey, AOR.
For the Petitioners: Mr. Sanjay Singhavi, Sr. Adv., Mr. Sandeep Sudhakar Deshmukh, AOR, Ms. Rohini Thyagarajan, Adv., Ms. Shanvi Punamiya, Adv., Mr. Nishant Sharma, Adv., Mr. Akshay Arora, Adv., Ms. Nupur Kumar, AOR, Mr. Karan Nagrath, Adv., Mr. Ambuj Tiwari, Adv., Ms. Niharika Tanwar, Adv.
For the Respondents: Mr. Mohit Singh, AOR, Dr. Abhishek Manu Singhvi, Sr. Adv., Mr. S. Niranjan Reddy, Sr. Adv., Mr. Avishkar Singhvi, Adv., Ms. Rukhmini Bobde, Adv., Mr. Amit Kumar Mishra, Adv., Mr. Azeem Samuel, Adv., Ms. Mitakshara Goyal, Adv., Mr. L Nidhiram Sharma, Adv., Mr. Kaustubh Seth, Adv., Mr. Akhil Kumar Kulshrestha, Adv., Ms. Akhila, Adv., Mr. Shivam Singh, Adv., Ms. Yashika Nagpal, Adv., Mr. Vivek Kumar, Adv., Mr. Naved Ahmed, Adv., Mr. Amlaan Kumar, Adv., Mr. Kunal Chatterji, AOR, Ms. Aishwarya Bhati, ASG, Ms. B.L.N. Shivani, Adv., Ms. Manisha Chava, Adv., Mr. Santosh Kumar Pandey, AOR.
Table of Contents
2. Whether writ jurisdiction is determined at the date of institution or issuance, and whether a privatized entity performing commercial functions remains amenable to such jurisdiction. (Para 7 , 8 , 9 , 10 , 11 , 12 , 14 , 15 , 16 , 17 , 18 , 19 , 20 )
3. The respondent ceased to be a State instrumentality upon privatization and does not perform public duties, rendering the writ petitions non-maintainable at the time of decision. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 31 , 32 , 33 , 35 , 36 , 37 , 38 , 39 , 41 )
4. Writ jurisdiction under Article 226 is determined at the time of issuance; privatization of a government entity into a commercial private body removes its amenability. (Para 32 , 33 , 37 , 38 )
5. Appeals dismissed, upholding the dismissal of writ petitions on grounds of non-maintainability while protecting the right to seek alternative legal remedies. (Para 40 , 42 , 44 , 45 )
6. When is the test of jurisdiction for issuing a writ under Article 226 applied?
The test of jurisdiction is applied at the time of the issuance of the writ by the High Court, rather than solely at the time the petition was instituted. (Para 14 , 38 )
7. Does the privatization of a government company affect the maintainability of a pending writ petition?
Yes, if the company ceases to be a State instrumentality under Article 12 and no longer performs a public duty, it becomes immune to writ jurisdiction, even if it was a government entity when the petition was filed. (Para 29 , 32 , 33 , 38 )
8. Can a writ be issued against a private entity performing commercial operations?
No, a writ is generally not maintainable against a private entity unless it is discharging a public function or positive obligation of a public nature; purely commercial operations do not qualify as public duties. (Para 17 , 36 , 37 )
9. Does delay in the disposal of a writ petition by the court sustain its maintainability against a subsequently privatized entity?
No, delay in disposal is not a valid ground to maintain a writ petition against a respondent that has changed from a government entity to a private entity during the intervening period. (Para 39 )
1. Leave granted.
2. The present appeals are filed challenging the common impugned judgment and order dated 20th September, 2022 passed by the Division Bench of the High Court of Bombay thereby dismissing four writ petitions instituted by the appellants being the former employees of respondent No.3 i.e. Air India Limited(hereinafter referred to as ‘AIL’) as members of its cabin crew force. Appellants came to be employed in AIL in the late 1980s and all of them retired between 2016 and 2018.
3. Writ Petition Nos. 123 of 20141[Filed on 30th August, 2013] and 844 of 20142[Filed on 09th October, 2014] were filed for alleged stagnation in pay and non-promotion of the employees. Writ Petition No. 844 of 2014 additionally raised issues of anomalies in the fixation of pay arising out of and for implementation of the report of the Justice Dharmadhikari Committee3[Constituted by the respondent No.1 i.e. Union of India(through its Ministry of Civil Aviation) to harmonize the differential service conditions of AIL and Indian Airlines Ltd, which came to be merged]. Writ Petition Nos. 1770 of 20114[Filed on 14th June, 2011] and 1536 of 20135[Filed on 19th March, 2013], pertained to the delay in payment of wage revision arrears and the withdrawal of eight out of the seventeen allowances already paid to the employees retrospectively. In each of the writ petitions, violation of Articles 14, 16, and 21 of the Constitution of India, 1950, was pleaded. The Division Bench of Bombay High Court, vide common judgment and order dated 20th September, 2022 disposed of the above writ petitions denying relief as claimed therein on the ground of non-maintainability of the writ petitions owing to the intervening event of privatisation of respondent No. 3(AIL). Nevertheless, liberty was granted to the employee petitioners to seek their remedies in accordance with law.
Brief Facts: -
4. Air India was a statutory body constituted under the Air Corporations Act, 1953. With the repeal of the Act of 1953 by the Air Corporations(Transfer of Undertakings) Act, 1994, Air India merged with Indian Airlines and upon incorporation, respondent No. 3(AIL) became a wholly Government owned company and, thus, came under the category of ‘other authorities’ within the meaning of Article 12 of the Constitution of India. This status of Air India continued to subsist on the date when the subject batch of writ petitions(supra) under Article 226 of the Constitution of India were filed before the High Court invoking writ jurisdiction, against respondent No.3(AIL).
5. However, on 08th October, 2021, the Government of India announced that it had accepted the bid of Talace India Pvt Ltd. to purchase its 100% shares in respondent No. 3 (AIL). Subsequently, on 27th January, 2022 pursuant to the share purchase agreement signed with Talace India Pvt. Ltd., 100% equity shares of the Government of India in respondent No. 3(AIL) were purchased by the said private company and respondent No. 3(AIL) was privatised and disinvested. Therefore, the writ petitions were maintainable on the date of institution but the question that arose before the High Court was whether they continued to be maintainable as on the date the same were finally heard.
6. Learned Judges of the Division Bench of the Bombay High Court, while placing reliance upon the decisions of Tarun Kumar Banerjee v. Bharat Aluminium Co. Ltd. and Another , 2008 SCC OnLine Bom 1899; Mahant Pal Singh v. Union of India and Others , 2009 SCC OnLine Bom 2554; Padmavathi Subramaniyan and Others v. Ministry of Civil Aviation Government of India rep by its Secretary and Others , 2022 SCC OnLine Kar 1706 and few more decisions of the Delhi High Court and Gujarat High Court concluded that with the privatisation of respondent No. 3(AIL), jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ to respondent No. 3(AIL), particularly in its role as an employer, did not subsist and disposed of the writ petitions vide com
