Ramesh Nambiar v. Air India Ltd. & ANR
$~28 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 11931/2015 & CM APPL. 31668/2015 RAMESH NAMBIAR .....Petitioner Through:
Mr. Vineet Tayal, Advocate.
versus AIR INDIA LTD. & ANR .....Respondents Through:
Mr. Attin Shankar Rastogi, Mr.Rishad Chowdhary, Mr. Rajesh Ranjan, Mr. Pratyush Singh and Mr. Aman Kapoor, Advocates for Respondents.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
O R D E R
% 23.07.2024 1.
This petition has been preferred on behalf of the Petitioner seeking the following reliefs:
"a). summon the records of the case;
b). issue a writ in the nature of certiorari thereby quashing the impugned order dated 03.12.2015 conveyed vide letter dated 04.12.2015 [Annexure P-1 (Colly.)];
c). issue a writ in the nature of Mandamus or such other writ directing the respondents to grant the pay scale of the post of Dy. General Manager (Sports) w.e.f. 01.03.2011 alongwith arrears thereof with interest @ 12% p.a.;
d). issue a writ in the nature of Mandamus or such other writ directing the respondents to consider the petitioner for promotion to the post of General Manager, based upon his date of promotion as Dy. General Manager as on 01.03.2011, with all consequential benefits flowing therefrom;
e). it is still further respectfully submitted that during the pendency of the present writ petition, operation of the impugned order dated 03.12.2015 may kindly be stayed and the respondents be directed to maintain statusW.P.(C) 11931/2015 Page 1 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
quo with respect to the Order dated 15.04.2011; and f). Pass any other or further order as this Hon'ble Court may deem fit in the facts and circumstances of the present case." 2.
This writ petition has been filed against Air India Ltd. ('AIL'). Learned counsel for the Respondents raises a preliminary objection to the maintainability of the writ petition on the ground that as a result of the disinvestment process initiated by the Government of India, AIL has ceased to be a public body and therefore, no writ can lie against AIL in the circumstances that exist today. It is submitted that originally AIL was a statutory body constituted under the Air Corporations Act, 1953, however, post its repeal and in terms of the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994, it had become a wholly owned company of the Government of India.
It is at this stage that the present writ petition was filed, however, in light of the position that obtains today, where AIL has been privatised and the entire shareholding of the Government of India in AIL has been transferred to M/s. Talace Pvt. Ltd. (a wholly owned subsidiary of M/s. Tata Sons Pvt. Ltd.), no writ petition can lie under Article 226 of the Constitution of India as AIL is no longer a public body or Authority within the meaning of Article 12 of the Constitution of India. 3.
Reliance is placed on the judgment of the Supreme Court in R.S. Madireddy and Another v. Union of India and Others, 2024 SCC OnLine SC 965, wherein the Supreme Court has held as follows: "32. There is no dispute that the Government of India having transferred its 100% share to the company Talace India Pvt Ltd., ceased to have any administrative control or deep pervasive control over the private entity and hence, the company after its disinvestment could not have been treated to be a State anymore after having taken over by the W.P.(C) 11931/2015 Page 2 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
private company. Thus, unquestionably, the respondent No. 3(AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India. 33.
Once the respondent No. 3(AIL) ceased to be covered by the definition of State within the meaning of Article 12 of the Constitution of India, it could not have been subjected to writ jurisdiction under Article 226 of the Constitution of India.
34.
A plain reading of Article 226 of the Constitution of India would make it clear that the High Court has the power to issue the directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition to any person or authority, including in appropriate cases, any Government within its territorial jurisdiction for the enforcement of rights conferred by Part-III of the Constitution of India and for any other purpose. 35.
This Court has interpreted the term 'authority' used in Article 226 in the case of Andi Mukta (supra), wherein it was held as follows: "17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them means everybody which is created by statute-and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose'.
***
20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected W.P.(C) 11931/2015 Page 3 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied." (emphasis supplied) 36.
Further, in the case of Federal Bank Ltd. v. Sagar Thomas, this Court culled out the categories of body/persons who would be amenable to writ jurisdiction of the High Court which are as follows: "18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v.) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function." 37.
The respondent No. 3(AIL), the erstwhile Government run airline having been taken over by the private company Talace India Pvt. Ltd., unquestionably, is not performing any public duty inasmuch as it has taken over the Government company Air India Limited for the purpose of commercial operations, plain and simple, and thus no writ petition is maintainable against respondent No. 3(AIL). The question No. 1 is decided in the above manner.
38.
The question of issuing a writ would only arise when the writ petition is being decided. Thus, the issue about exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India would arise only on the date when the writ petitions were taken up for consideration and decision. The respondent No. 3(AIL)- employer was a government entity on the date of filing of the writ petitions, which came to be decided after a significant delay by which time, the company had been disinvested and taken over by a private player. Since, respondent No. 3 employer had been disinvested and had assumed the character of a private entity not performing any public function, the High Court could not have exercised the extra ordinary writ jurisdiction to issue a writ to such private entity.
The learned Division Bench has taken care to protect the rights of the appellants to seek remedy and thus, it cannot be said that the appellants have been non-suited in the case. It is only that the appellants would have to approach another forum for seeking their remedy. Thus, the question No. 2 is decided against the appellants.
39.
By no stretch of imagination, the delay in disposal of the writ petitions could have been a ground to continue with and maintain the writ petitions because the forum that is the High Court where the writ petitions were instituted could not have issued a writ to the private respondent W.P.(C) 11931/2015 Page 4 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
which had changed hands in the intervening period. Hence, the question No. 3 is also decided against the appellants. 40.
Resultantly, the view taken by the Division Bench of the Bombay High Court in denying equitable relief to the appellants herein and relegating them to approach the appropriate forum for ventilating their grievances is the only just and permissible view. 41.
We may also note that the appellants raised grievances by way of filing the captioned writ petitions between 2011 and 2013 regarding various service-related issues which cropped up between the appellants and the erstwhile employer between 2007 and 2010. Therefore, it is clear that the writ petitions came to be instituted with substantial delay from the time when the cause of action had accrued to the appellants. 42.
It may further be noted that the Division Bench of Bombay High Court, only denied equitable relief under Article 226 of the Constitution of India to the appellants but at the same time, rights of the appellants to claim relief in law before the appropriate forum have been protected. 43.
We may further observe that in case the appellants choose to approach the appropriate forum for ventilating their grievances as per law in light of the observations made by the Division Bench of the Bombay High Court, Section 14 of the Limitation Act, 1963 shall come to the rescue insofar as the issue of limitation is concerned. 44.
In wake of the discussion made hereinabove, we do not find any reason to take a different view from the one taken by the Division Bench of the Bombay High Court in sustaining the preliminary objection qua maintainability of the writ petitions preferred by the appellants and rejecting the same as being not maintainable." 4.
In view of the aforesaid judgment of the Supreme Court, the writ petition cannot be entertained and is accordingly dismissed as not maintainable. Liberty is granted to the Petitioner to take recourse to remedies available in law before the appropriate forum. It is made clear that the time period, for which the writ petition has been pending in this Court, will be excluded for the purpose of computation of limitation under Section 14 of the Limitation Act, 1963, should the Petitioner seek any remedy by instituting fresh proceedings in a forum where question of limitation will be relevant and may arise. It is also made clear that the petition is being W.P.(C) 11931/2015 Page 5 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
dismissed only on the ground of maintainability and this Court has not entered into or expressed any opinion on the merits of the case and all rights and contentions of the respective parties are left open. Pending application also stands disposed of.
JYOTI SINGH, J JULY 23, 2024/jg W.P.(C) 11931/2015 Page 6 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.