-MEMORANDUM for the RESPONDENT-

THE TABLE OF CONTENTS

CONTENTS THE TABLE OF CONTENTS THE INDEX OF AUTHORITIES THE STATEMENT OF JURISDICTION THE STATEMENT OF FACTS THE STATEMENT OF ISSUES THE SUMMARY OF ARGUMENTS THE ARGUMENTS ADVANCED THE PRAYER

PAGE Page 1 of 32 Page 2 of 32 Page 7 of 32 Page 8 of 32 Page 10 of 32 Page 11 of 32 Page 13 of 32 Page 32 of 32

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INDEX OF AUTHORITIES

TABLE OF INDIAN CASES S No. 1. 2. 3. 4. Name of Case Lt. Governor Of Delhi & Ors vs V.K. Sodhi & Ors 2007 AIR 2885 Prakash Rekhi v. Union of India & Anr., (1981)2 S.C.R. 111 B.S. Minhas v. Indian Statistical Institute & Ors (1983)4 S.C.C. 582 Pg No. 13 13 13

Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh 13 & Ors. (1984) Supp. S.C.C. 540 Workmen of Hindustan Steel Ltd. & Anr. v. Hindustan Steel Ltd. & Ors.(1984) Supp. S.C.C. 554, 560 K. Ramachandra Iyer & Ors. v. Union of India & Ors. (1984) 2 S.C.R. 141 A.L. Kalra v. Project and Equipment Corporation of India Ltd., [1984] 3 S.C.R. 316 West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh & Ors.(1985) 3 S.C.C. 116 Praga Tools Corporation v. C.A. Imanual & Ors., (1969) 3 S.C.R 773 Sukhdev Singh & Ors. v. Bhagat Ram Sardar Singh Raghuvanchi & Anr.,(1975) 3 S.C.R. 619 Ramana Dayaram Shetty v. The International Airport Authority of India & Anr., (1979) 3 S.C.R. 1014 Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay Narain Vajpayee, (1980) 2 S.C.R. 773 Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors. etc., (1981) 2 S.C.R. 79; Pradeep Kumar Biswas & Ors. v. Indian Institute of Chemical Biology & Ors(2002) 5 SCC 111 Chander Mohan Khanna v. National Council Of Educational Research And training And Ors1992 AIR 76, 1991 SCR Supl. Integrated Rural Development Agency v. Ram Pyare Pandey1995 Supp. (2) S.C.C. 495
-2-

5.

13

6.

13

7.

13

8.

13

9 10.

13 13

11.

13,19,20,21

12

13

13

13,20

14

13,20

15

13

16

30

-MEMORANDUM for the RESPONDENT-

17

Smt. J. Tiwari v. Jawala Devi Vidya Mandir and Ors1979 (1) S.L.R. (S.C.) 614 Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors AIR 1976 S.C. 888 R.D., Sharma v. St. John's High School and Ors2002 (3) R.S.J. Pb. & Hy. 398. All India ITDC Workers Union & Ors.v. ITDC & others(2006) 10 SCC 66 G.Bassi Reddy v. International Corps Research Institute(2003) 4 SCC 255 Balco Employees Union v. Union of India & Another(2002) 2 SCC 333 Agricultural Produce Market Committee vs. Ashok Harikunj & Another(2000) 8 SCC 61 Zee Telefilms Ltd v Union of India AIR 2005 SC 2677 Ujjam Bai v. Union of India(1963) l SCR 778 University Of Madras v. Southern Bal AIR 1954 Madras 67 Krishna Gopal v. Punjab University AIR 1966 Punjab 34 Carlsbad Mineral Water Mfg. Co. Ltd. v. Jagtiani. AIR 1952 Cat 315 C. M. Khanna v. NCERT AIR1992 SC 76 Workmen Of Pepsico India Holdings v. Deputy Labour Commissioner, (2002)1 SCC 356 Kisan Sahkari Chini Mills Ltd. v. Rakesh Chandra Gangwar And Ors(2004) 1 SCC 45 Purshottam Das Tandon v. Military Estate Officer AIR 2000 All 127 Smt. Biran Devi v. Sechu Lal, 2001 (4) AWC 2659 Gajendra Kumar Sharma v. General Manager,1999 (4) AWC 2.149 (NOC) Dr. Anand Kumar Gupta v.Rajghat Education Centre And Ors. on (2002)5 SCC 56

14

18

14

19

14

20

14

21

14

22 23

14 14

24 25 26 27 28 29 30

14 14 15 15 15 15 15

31

15

32 33 34

15 15 15

35

15

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36 37

Bihari Lal Chauhan v. Director Of Factories (2003)(2)AWC 1069 Air Vice Marshal J.S. Kumar v. Governing Council Of Air Force And Another (2006)3 SCC 678 The Management Of Sivananda v. Sivananda Steels Employees (2005)1 SC 66 Devendrajeet Vadra v. State Of U.P. And Ors. (2003)(4)AWC 2900 Dr. A.K. Gupta v. Rajghat Education Centre, 2003 (1) AWC 503 General Manager, Modipon Fibre Co. v. Narendra Pal 2003 ALJ 980 Gopi Krishna Srivastava v. Deputy Housing (2002) (1) AWC 604 Estate Pvt. Ltd. v. N.D.M.C. (2005) (1) MLJ 453 Ravinder Singh v. Principal, Parker Inter College( 1998) (4) AWC 160 State Of U.P. And Ors.v. Labour Court And Ors (1997) 7 SCC 463 Simco Rubber Product (P.) Ltd. v. Bank Of India (2003) 51 SCL 272 All Executive Committee of Vaish Degree College, Shamli and Others v. Lakshmi Narain & Ors (1976)2 SCR 1006 Deepak Kumar Biswas v. Director of Public Instructions. 1987 (2) SCC 252 VST Industries Ltd. v. Workers Union 2001 (1) SCC. 298 Shri Andi Mukta Sadguru Trust v. V.R. Rudani 1989 AIR 1607 Jatya Pal Singh & Ors. v. Union Of India & Ors WPN.2652 of 2007 S.S. Rana v. Register Cooperative Societies 2006 AIR SCW 3723 K. Vasudevan Nair v. Union of India 1991 Supp.(2) SCC 134 Sindhi Education Society & Anr. v. Government (NCT of Delhi) (2010) 8 SCC 49 Binny Ltd. & Anr v. V. Sadasivan & Ors (2003) 4 SCC 255 Visva Bharati v. Smt. Rakhi Debnath And Ors. (1996) 1 CALLT 51 HC P. Electricity Board v. Regional Provident Fund (2004) IILLJ 40 MP Basu Distributors Pvt. Ltd. v. Income Tax Officer 2007 292 ITR 29 Delhi

15 15

38

15

39 40 41 42 43 44 45 46 47

15 15 15 15 15 15 15 15 15

48

15

49 50 51 52 53 54

16 16 16 18 18 18

55 56 57 58

21 21,29 21 21

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59 60

Gita Theatres And Anr. v. Municipal Corporation (1998) 3 GLR 2591 A.B. Joglekar And Anr. v. Debts Recovery Tribunal And Anr. III (2004) BC 41, 2002 (5) MPHT 187 Calcutta Municipal Corporation. v. M/S. Bala Bestos India Ltd (1998) 2 CALLT 249 HC, 1998 (1) CHN 492 Radhakrishna Agarwal v. State of Bihar(1977) 3 SCC 457 Poonam v. Sumit Tanwar AIR 2010 SC 1384 P.V. Narsimha Rao . v. State AIR 1998 SC 2120 Municipal Corporation Of Delhi v. R.P. Khaitan And Anr.1995 IVAD Delhi 883, 1995 (35) DRJ 604 Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhya(2010) 4 SCC 378 General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP v. Satrughan Nishad and Ors. (2003) 8 SCC 639 Mrs. K. Naqvi v. State of Punjab and Ors 2004 ILR 2 (Punjab and Haryana) 11 DAV Managing Committee v. Surender Rana (2011) 192 SC Sri Ramdas Motor Transport Ltd. v.Tadi Adhinarayana Reddy And Ors. AIR 1997 SC 2189 Shyam Kishore and others v. Municipal Corporation of Delhi AIR 1991 Delhi 104 Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhya(2010) 4 SCC 378 Sonia v Oriental Insurance Co. Ltd, Appeal (civil) 3521 of 2007 Narayana Rao and Anr. v. State of A.P. and Anr AIR 1987 AP 57 Indra Sawhney etc. Vs. Union of India AIR 1993 SC 477 GRIDCO Ltd. V. Sadananda Doloi AIR 2012 SC 137 Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1 SCR 103 M. R. Balaji v. State of Mysore ((1963) Supp 1 SCR 439

21 21

61

21

62 63 64 65

21 22 22 22

66 67

22 22

68

22

69 70

22 22,27

71

22

72 73 74 75 76 77

23 23 27 28 28 28

78

29

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79 80 81 82

State of A. P. v. P. Saga AIR 1975 SC 563 State of Uttar Pradesh v. Pradip Tandon and Ors 1985 SC1495 Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 New India Co-Op. Housing Society v. Municipal Corpn. of Greater (2008) 9 SCC 694

29 29 29 22

1 2 3 4 5

INTERNATIONAL CASES Davy v. Spelthone[1984]AC 262 R.V. East, Bershire Health Authority[1987] 2 All ER 909 R. v. Lewisham Union[1897] 1 Q.B. 498, 501 Reilly v. Mackman[1983] 2 AC 237 Mc. Clelland v. Northern Ireland General Health Services Boards[1957] 1 W.L.R. 594 Ridge v. Baldwin[1964]A.C. 40 Short v. Poole Corporation[1926] Ch. 66 Attorney- General v. St. Ives R.D.C[1961] 1 Q.B. 366 R. v. IRC, ex p Preston[1985] AC 835 Hughes vs. Department of Health and Social Security (HL) 1985 AC 776 (788) LIST OF BOOKS and ARTICLES

17 17 17 17 17

6 7 8 9. 10.

17 17 17 30 31

1. The Hindu, Public Private Partnership, Monday, Feb 18, 2002 2. Mr. Detan "Why Administrators should be bound by their policies" (Vol. 17) 1997 Oxford Journal of Legal Studies, 3. Article 12: Scope as expanded by judiciary www.legalservices.in 4. B. I. Hansaria Tripathi, Writ Jurisdiction under the Constitution 34(Universal, New Delhi, 2nd edn., 2008).

16

28

13

19

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STATEMENT OF JURISDICTION

THE PETITIONERS IN THE PRESENT CASE HAS BEEN EMPOWERED BY ARTICLE 32 AND ARTICLE 136 OF THE CONSTITUTION OF INDISTAN TO INITIATE THE PRESENT PROCEEDINGS IN THE HONBLE SUPREME COURT OF INDISTAN.

ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES 1) THE RIGHT TO MOVE THE SUPREME COURT BY APPROPRIATE PROCEEDINGS FOR THE ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS PART IS GUARANTEED.

2) THE SUPREME COURT SHALL HAVE POWER TO ISSUE DIRECTIONS OR ORDERS OR WRITS, INCLUDING WRITS IN THE NATURE OF HABEAS CORPUS, MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI, WHICHEVER MAY BE APPROPRIATE, FOR THE ENFORCEMENT OF ANY OF THE RIGHTS CONFERRED BY THIS PART.

ARTICLE 136 (1) NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE SUPREME COURT MAY, IN ITS DISCRETION, GRANT SPECIAL LEAVE TO APPEAL FROM ANY JUDGMENT, DECREE, DETERMINATION, SENTENCE OR ORDER IN ANY CAUSE OR MATTER PASSED OR MADE BY ANY COURT OR TRIBUNAL IN THE TERRITORY OF INDISTAN.

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMIT TO THE JURISDICTION OF THE HONBLE SUPREME COURT IN THE PRESENT MATTER.

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STATEMENT OF FACTS

I The Republic of Indistan is an emerging welfare state in South Asia. Due to its economic diversification it holds great potential for economic investments by developed nations. Constitution of Indistan lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens similar to the Republic of India.

II A new State run corporate entity namely Indistan International Communication Limited (IICL) in year 1981 which had a kind of monopoly in respect of International Long Distance Service i.e. ILDS and international telecommunication services was created by the Govt. of Indistan in 1947.

III In pursuance of New Economic Policy (NEP) 1993, which promoted Public- Private Partnership (PPP), the republic of Indistan started disinvesting wide range of Public Sector Units (PSU) which were promoted and controlled by State including IICL.

IV In year 2000, the Govt. of Indistan divested itself of the shares of IICL in favour of a group of companies floated by XYZ Corporation Pvt. Ltd. (a corporate entity of Indistan) after following the due process according to its disinvestment policy. As part of disinvestment package the new management the new management ha the custody of all the all the

infrastructural components. However, even after disinvestment, the Govt. of Indistan still remains the largest single stakeholder as per the share- holding composition.

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VI

As per the share holding agreement and share purchase agreement the Government of Indistan ensured that none of the employees should be retrenched for a period of 3 year from the disinvestment and that the Govt. has a first right to refuse on future sell of shares by any strategic partner wishes to sell off the stakes in IICL respectively.

VII Thereafter in 2001 an Office Memorandum (OM) dated 13th August and another recommendation dated 03rd May by the Government of Indistan ensured job security and social security in case where the Public Sector Units and Govt. enterprises are being disinvested.

VIII The new Management of IICL namely XYZ Corp. Limited, in year 2009 terminated 20 managerial employees (who were selected by the Indistan Public Service Commission and appointed by the President of Indistan) after paying 3 months salary in lieu of notice period terming their employment as merely contractual. Majority of them belonged to backward class of citizens.

IX Writ petitions were filed by an association of employees namely XYZ Shoshit Employees Welfare Association before the High Court of Indistan alleging discrimination by the IICL & XYZ Corp. Ltd and seeking reinstatement and specific enforcement of OM dated 13th August 2001 against the Govt. of Indistan. But the Indistan High Court dismissed the writ petition under and termed the relationship as merely contractual in nature.

X All Indistan Backward Class (affected by disinvestment) Employee Association has approached the Supreme Court of Indistan seeking the specific enforcement of recommendation dated 03rd May 2001 by way of a Writ Petition under Article 32 of the Constitution.

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THE STATEMENT OF ISSUES

THE FOLLOWING ISSUES FOR CONSIDERATION HAVE COME UP BEFORE THE HOBBLE SUPREME COURT OF INDISTAN.

I.

WHETHER

THE

RESPONDENT

COMPANY

IS

AMENABLE

TO

WRIT

JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDISTAN?

A. WHETHER IICL & ITS NEW MANAGEMENT IS STATE UNDER ARTICLE 12 OF THE CONSTITUTION OF INDISTAN? B. WHETHER IICL & ITS NEW MANAGEMENT IS PERFORMING PUBLICFUNCTION?

II.

WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND THE RECOMMENDATIONS OF MINISTRY OF SOCIAL JUSTICE AND

EMPOWERMENT COULD BE SPECIFICALLY ENFORCED? A. WHETHER THE TERMINATION OF EMPLOYEES WAS ARBITRARY AND OPPOSED TO RULES OF NATURAL JUSTICE?

B. WHETHER THE ENFORCEMENT OF CONSTITUTIONAL RIGHTS IN TERMS OF AFFIRMATIVE ACTION IS A LEGITIMATE EXPECTATION AND THE RECOMMENDATION BY THE MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT SHOULD BE SPECIFICALLY ENFORCED?

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SUMMARY OF ARGUMENTS

I.

WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. IS AMENABLE TO WRIT JURISDICTION? A. IICL & Its New Management is not amenable to writ jurisdiction because after disinvestment the respondent company has become a private entity and the actions of the State or an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review.

B. Since the year 2000, Government of Indistan holds only 31 % shares of IICL. Therefore, it can be safely concluded that on the basis of the shareholding, the Government of India would not be in control of the affairs of IICL. IICL cannot be declared as a State or other authority within the meaning of Article 12 of the Constitution of Indistan as it does not fall within the well recognized parameters of state under Article 12.

C. In the instant case the respondent company is a purely private entity and it is not bound by the recommendation dated 3rd May, 2001 of the Ministry of Social Justice and Empowerment, Government of Indistan. It is just and fair that employees be given enough time to seek alternative source of livelihood.

D. An alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ.

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-MEMORANDUM for the RESPONDENT-

II. WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND THE RECOMMENDATIONS OF MINISTRY OF SOCIAL JUSTICE AND

EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?

A. The termination of services of the employees was done in the year 2009 which was nine years after the date of disinvestment. The termination of employees was not in violation of the share purchase and share-holding agreement and the new management of IICL was well within their bounds to terminate the services of such employees. Hence, the action of respondent was not arbitrary.

B. The respondent company is a purely private entity. Therefore, it is not bound by the recommendation dated 3rd May, 2001 of the Ministry of Social Justice and Empowerment, Government of Indistan.

C. The new management of IICL being a purely private entity is not bound by the constitutional mandates of the state and is free to choose whether to continue utilizing the service of an employee or to terminate such service, based on a contract.

D. The purpose of serving a notice prior to the termination of service is not to leave the employee suddenly in lurch with no resources. It is just and fair that employees be given enough time to seek alternative source of livelihood.

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THE ARGUMENTS ADVANCED

A. WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. IS AMENABLE TO WRIT JURISDICTION? The answering respondent reverentially submits that IICL & its new management is not amenable to writ jurisdiction and the high court order ought not to be set aside.

1. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI TO FILE A WRIT AGAINST THE RESPONDENT AS IT IS NOT A STATE WITHIN THE MEANING OF ARTICLE 12 OF THE CONSTITUTION OF INDISTAN. In the classical words of P.K. BALASUBRAMANYAN, J1: As the decisions of this Court show 2 , there is no simple litmus test, to determine whether an entity is a State or other authority within the meaning of Article 12 of the Constitution of India. What is clear from the decisions is that the various facets of the foundation and the working of the entity would be relevant in determining the question in the context of the duties entrusted to it or taken up by it for performance. It is in that context that in the seven judges Bench decision in Pradeep Kumar Biswas & Ors. v. Indian Institute of Chemical Biology & Ors 3 , it was held that expanding dimension of 'the State' doctrine through judicial wisdom ought to be accompanied by wise limitations else the expansion may go much beyond what even the framers of Article 12 may have thought of.

Lt. Governor Of Delhi & Ors vs V.K. Sodhi & Ors 2007 AIR 2885

Prakash Rekhi v. Union of India & Anr., (1981)2 S.C.R. 111; B.S. Minhas v. Indian Statistical Institute & Ors (1983)4 S.C.C. 582; Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh & Ors. (1984) Supp. S.C.C. 540; Workmen of Hindustan Steel Ltd. & Anr. v. Hindustan Steel Ltd. & Ors.(1984) Supp. S.C.C. 554, 560; P.K. Ramachandra Iyer & Ors. v. Union of India & Ors. (1984) 2 S.C.R. 141; A.L. Kalra v. Project and Equipment Corporation of India Ltd., [1984] 3 S.C.R. 316; West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh & Ors.(1985) 3 S.C.C. 116; Praga Tools Corporation v. C.A. Imanual & Ors., (1969) 3 S.C.R. 773; Sukhdev Singh & Ors. v. Bhagat Ram Sardar Singh Raghuvanchi & Anr. ,(1975) 3 S.C.R. 619; Ramana Dayaram Shetty v. The International Airport Authority of India & Anr. , (1979) 3 S.C.R. 1014 ;Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay Narain Vajpayee, (1980) 2 S.C.R. 773; Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors. etc., (1981) 2 S.C.R. 79;
3

(2002) 5 SCC 111

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1.1. The respondent deferentially submits that the majority summed up the position in paragraph 40 thus: The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State. The question is Whether IICL can be said to be financially, functionally and administratively dominated by or under the control of the Government. It has to be noted that financially majority of shares are held by XYZ corp. Ltd, in the matter of administration in IICL, the New Management is supreme. The administration is also completely with the IICL & its New Management. Therefore the governmental interference or control financially, functionally or administratively, in the working of the Company is out of the question. Hence, it can be safely determined that respondent company is not amenable to writ jurisdiction. To Buttress this contention inspiration is drawn from the case of Chander Mohan Khanna v. National Council Of Educational Research And training And Ors4 wherein these were the aspects taken note of to come to the conclusion that NCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. No doubt, in Chander Mohan Khanna5, the Bench noted that the fact that education was a State function could not make any difference. 1.2. It is reverentially submitted that the Respondent-company is a private body as it is not under the control of the Government. The employment of the Petitioner in the company was purely a private contract entered into between the Master and Servant and even if its breach is assumed to be wrongful, yet the Petitioner is not entitled to reinstatement as it may at the best, give cause of action to them to claim damages in appropriate proceedings. It is further submitted that even if the company is performing public duty of imparting Telecommunication services, the action in employing managers or other employees or governing their service conditions does not constitute a part of the aforementioned public duty. Therefore, neither the writ petition is maintainable against Respondent nor the Petitioner is entitled to reinstatement into service. To substantiate further the Counsel for
4

1992 AIR 76, 1991 SCR Supl. (1) 165; Lt. Governor of Delhi and Ors .v. V.K. Sodhi and Ors. AIR 2007 SC 2885
5

ibid

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-MEMORANDUM for the RESPONDENT-

Respondent place reliance upon Integrated Rural Development Agency v. Ram Pyare Pandey,6;Smt. J. Tiwari v. Jawala Devi Vidya Mandir and Ors.7, Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors.8, R.D., Sharma v. St. John's High School and Ors.9, as well as the judgment in Andi Mukta's case10 . Furthermore it is reiterated that the Government is not controlling the Respondent-company therefore; the State has nothing to do with the private action of the Respondent Company in the matter of appointment and/or termination of its employees. 1.3. The answering respondent most respectfully submits that the tests for determining as to whether a particular body would fall within the definition of State or other authority have been well defined by this Court in array of decisions and the law on the point is well settled. Therefore, there is no scope for enlarging the time tested definitions rendered by this Court. To buttress this assertion reliance is placed upon All India ITDC Workers Union & Ors.v. ITDC & others11;Pradeep Biswas v. Indian Inst. of Chemical Biology12; G.Bassi Reddy v. International Corps Research Institute 13 ; Balco Employees Union v. Union of India & Another14; Agricultural Produce Market Committee vs. Ashok Harikunj & Another15 and also Zee Telefilms Ltd v Union of India16 in which the court by majority of 3 to 2 declined to accept Board Of Control For Cricket In India(-a society registered under the Tamil Nadu Society Registration Act,1975 as the state under article 12. Although the majority followed Pradeep Biswas and earlier case on agency or instrumentality test and also recognised that

1995 Supp. (2) S.C.C. 495 1979 (1) S.L.R. (S.C.) 614 AIR 1976 S.C. 888 2002 (3) R.S.J. Pb. & Hy. 398. 1989 AIR 1607; G. Bassi Reddy v. International Crops Research Institute and Anr (2003) 4 S.C.C. 225 (2006) 10 SCC 66 Supra at pg 1 (2003) 4 SCC 255 (2002) 2 SCC 333 (2000) 8 SCC 61 , AIR 2005 SC 2677; c.f. V. N Shuklas, Constitution of India 53 (Eastern Book Company,Lucknow)

10

11

12

13

14

15

16

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-MEMORANDUM for the RESPONDENTsome of the fundamental rights are available even against non state action including individuals, it curiously held that the pre-requisite for the enforcement of a fundamental right under article 32 is that the violator of that right should be a State first. ) In Ujjam Bai v. Union of India17 the Supreme Court rejected the principle of ejusdem generis .It observed that there is no common genus between the authorities mentioned in Article 12.18 In University Of Madras v. Southern Bal19 The expression other authority did not include the university as it did not discharge governmental function-its purpose being to promote education. It was also observed that it was only a state aided institution and not state maintained. In Krishna Gopal v. Punjab University20the Punjab high court took the same stand.21. 1.4. Furthermore it is submitted that IICL is a private company against which no writ of mandamus can be issued. In several decisions, it has been held that a writ does not ordinarily lie against private bodies 22 To augment this contention, the counsel would like to place dependence upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli and Others v. Lakshmi Narain & Ors.23, and (b) Deepak Kumar Biswas v. Director of Public Instructions.24In the first of the two cases, the respondent institution was a
17

(1963) l SCR 778

18

Article 12:Scope as expanded by judiciary available at http://www.legalserviceindia.com/article/l271-Article12.html (Visited on July 15, 2013)
19

AIR 1954 Madras 67 AIR 1966 Punjab 34 B. I. Hansaria Tripathi, Writ Jurisdiction under the Constitution 34(Second edn.)

20

21

22

Praga Tools Corp. v. Imanuel. AIR 1969 SC 1306 ; Carlsbad Mineral Water Mfg. Co. Ltd. v. Jagtiani. AIR 1952 Cat 315 ; C. M. Khanna v. NCERT AIR1992 SC 76; Workmen Of Pepsico India Holdings v. Deputy Labour Commissioner, (2002)1 SCC 356, Kisan Sahkari Chini Mills Ltd. v. Rakesh Chandra Gangwar And Ors(2004) 1 SCC 45; Purshottam Das Tandon v. Military Estate Officer (2000); Smt. Biran Devi v. Sechu Lal, 2001 (4) AWC 2659, Gajendra Kumar Sharma v. General Manager,1999 (4) AWC 2.149 (NOC) : 1999 (3) UPLBEC 2452; Dr. Anand Kumar Gupta v.Rajghat Education Centre And Ors. on (2002)5 SCC 56; Bihari Lal Chauhan v. Director Of Factories And Anr.,(2003); Air Vice Marshal J.S. Kumar v. Governing Council Of Air Force And Another (2006)3 SCC 678; The Management Of Sivananda v. Sivananda Steels Employees (2005)1 SC 66; Devendrajeet Vadra v. State Of U.P. And Ors. (2003); Dr. A.K. Gupta v. Rajghat Education Centre, 2003 (1) AWC 503; General Manager, Modipon Fibre Co. v. Narendra Pal 2003 ALJ 980, Gopi Krishna Srivastava v. Deputy Housing (2002); Ralli Estate Pvt. Ltd. v. N.D.M.C. (2005); Ravinder Singh v. Principal, Parker Inter College( 1998); State Of U.P. And Ors.v. Labour Court And Ors. (1997); New India CoOp.Housing Society v. Municipal Corpn. of Greater (2008); Simco Rubber Product (P.) Ltd. v. Bank Of India (2003)
23

(1976)2 SCR 1006 1987] 2 SCC 252

24

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-MEMORANDUM for the RESPONDENT-

Degree College managed by a registered co-operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts, certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body. 1.5. A writ under Article 226 can lie against a 'person' if it performs a public function or discharges a public or statutory duty 25 .Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to performance of obligations owed by a company towards its workmen or to resolve any private disputes26. To buttress this contention attention is directed towards the Judgement in Shri R.D. Sharma v. St. John'S High School And Ors27 wherein it was held that: If the controversy involved in a particular writ petition is purely a service matter pertaining to the service conditions of a private contract, in such a situation if there is any breach, the High Court will not issue a mandate under Article 226 of the Constitution. The distinction, in my opinion, is patent and clear. In the present case the alleged cause of action arose to the Petitioner when his services had been terminated in an illegal manner without adopting the principles of natural justice. This is an alleged breach of contract of service on the part of St. John's High School which is a private institute not even aided by the Government. In such eventuality the remedy of the Petitioner lies somewhere else either under the general law or he may file a suit for damages in the competent court of jurisdiction. 1.6. It is most humbly submitted that actions of the State or an instrumentality of the State or an instrumentality of the State which do not properly belong to the field of public law but belong

25

Praga Tools Corpn. v. C.A. Imanual (1969) 3 S.C.R. 773, Shri Andi Mukta Sadguru Trust v. V.R. Rudani 1989 AIR 1607; VST Industries Ltd. v. Workers Union 2001 (1) SCC. 298
26

Sohan Lal v. Union of India (1997) 9 SCC83 CWP No. 15991 of 2009

27

-17-

-MEMORANDUM for the RESPONDENT-

to the field of private law are not liable to be subjected to judicial review. Confidence is placed upon Reilly v. Mackman28, Davy v. Spelthone29, I congress del Partido, R.V. East, Bershire Health Authority 30 and Redbakrishna Aggarwal v. State of Bihar. 31 Therefore, respondent company is not to be subjected to judicial review. 1.7. In the present case the company being a private entity there is no public duty imposed on it by a statute in respect of which enforcement could be sought by means of a writ. The High Court therefore was right in holding that no writ petition could lie against the company. To enhance this submission inspiration is drawn from the gamut of decisions including Sohan Lal v. Union of India,32 Regina v. Industrial Court & Ors.33 , R. v. Lewisham Union, 34, Mc. Clelland v. Northern Ireland General Health Services Boards35 , Ridge v. Baldwin,36, Short v. Poole Corporation,37 and Attorney- General v. St. Ives R.D.C.38 wherein reviewing the gamut of decisions the courts have succinctly, pithily and tersely laid down the law on the point. For the sake of brevity the counsel would like to illuminate by submitting that the High Court was correct in dismissing the writ petition. Once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by statute, no relief by way of a declaration as to the invalidity of an impugned agreement between it and its employees could be granted. The only course open to the High Court was to dismiss the petition and leave the workmen to the remedies under the any other Act. No such declaration against a company registered under the Companies Act, 1956 and not set up
28

[1983] 2 AC 237 [1984]AC 262 [1987] 2 All ER 909 1977 AIR 1496, 1977 SCR (3) 249 [1957] S.C.R. 738 [1965] 1 Q.B. 377 [1897] 1 Q.B. 498, 501 [1957] 1 W.L.R. 594 [1964]A.C. 40 [1926] Ch. 66 at pp. 90 to 91 [1961] 1 Q.B. 366

29

30

31

32

33

34

35

36

37

38

-18-

-MEMORANDUM for the RESPONDENT-

under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. 1.8. Since the year 2000, Government of Indistan holds only 31 % shares of IICL. Therefore, it can be safely concluded that on the basis of the shareholding, the Government of India would not be in control of the affairs of IICL. In order for IICL to be declared as a State or other authority within the meaning of Article 12 of the Constitution of India, it would have to fall within the well recognized parameters laid down in a number of judgments of this Court. In the case of Pradip Kumar Biswas 39 , a Seven Judge Bench of this Court considered the question as to whether Indian Institute of Chemical biology would fall within the definition of State or other authority under Article 12. Ruma Pal, J. speaking for the majority considered the manner in which the aforesaid two expressions have been construed by this Court in the earlier cases. It has been categorically held in the case of Ramana Dayaram Shetty v. International Airport Authority of India 40if only the functions of the Corporation are of public importance and closely related to Government functions, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of the Government. Strong reliance can be placed on Jatya Pal Singh & Ors. v. Union Of India & Ors41 where the Bench held that the functions performed by VSNL/TCL42 are not of such nature which could be said to be a public function. Undoubtedly, these operators provide a service to the subscribers. The service is available upon payment of commercial charges. Similarly functions performed by IICL are not of such nature which could be said to be a public function.43 The tests propounded for determining as to when the Corporation will be said to

39

Supra at page 1 (1979) 3 SCC 489 WPN.2652 of 2007

40

41

42

Ministry of Communication took a decision to convert its Overseas CommunicationService 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, all international telecommunication services of the country handled by the Govt. stood transferred to VSNL.
43

VST Industries Ltd. v. IST Industries Workers' Union (2001) 1 SCC 298, G. Bassi Reddy v. International Crops Research Institute , S.S. Rana v. Register Cooperative Societies 2006 AIR SCW 3723, 1995 Supp. (4) SCC 617, K. Vasudevan Nair v. Union of India 1991 Supp.(2) SCC 134;

-19-

-MEMORANDUM for the RESPONDENT-

be an instrumentality or agency of the Government as stated, in Ramana Dayaram Shetty v. International Airport Authority of India44 were summarized as follows : 1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. 45 2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) 3) It may also be a relevant factor whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15) 4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) 5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) 6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. (SCC p.510, para 18) The aforesaid ratio in Ramana Dayaram Shetty 46 has been consistently followed by this Court, as is evident from paragraph 31 of the judgment in Biswas47. Para 31 reads as under: The tests to determine whether a body falls within the definition of State in Article 12 laid down in Ramana with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.

44

(1979)3 SCC 489 SCC p. 507, para 14 Supra at page 13 Supra at page 13

45

46

47

-20-

-MEMORANDUM for the RESPONDENT-

The subsequent paragraphs of the judgment noticed the efforts made to further define the contours within which to determine; whether a particular entity falls within the definition of other authority, as given in Article 12. The ultimate conclusion of the Constitution Bench is recorded in paragraph 39 and 40 as under:-Fresh off the judicial anvil is the decision in Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn. which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government is an authority within the meaning of Article 12. In view of the aforesaid authoritative decision of the Constitution Bench (Seven Judges), it would be wholly unnecessary and unwarranted to consider the other judgments cited by the learned petitioners. 1.9 Further, if one examines the facts in the present case on the basis of the aforesaid tests, the conclusion is inescapable that IICL cannot be said to be other authority within Article 12 of the Constitution of India. As noticed above, the share holding of Government of Indistan would not satisfy test principles 1 and 2 in the case of Ramana Dayaram Shetty 48.On perusal of the facts, it would be evident that test No.3 would also not be satisfied as IICL does not enjoy a monopoly status in ILDS. So far as domestic market is concerned, there is open competition between the numerous operators.This brings us to the 4th test and again we are unable to hold that the Government of Indistan exercises deep and pervasive control in either the management or policy making of IICL which are purely private enterprises. We may also notice that in fact even Government Company like RIMCL is competitor of IICL in respect of ILDS. Therefore, it is succinctly submitted that the High Court of Indistan was fully justified in rejecting the claim of the petitioners that IICL would be amenable to writ jurisdiction of the High Court by virtue of the other authority within the purview of Article 12 of the Constitution of Indistan.

48

Supra at page 13

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-MEMORANDUM for the RESPONDENT-

1.10 It is emphatically submitted that, it is in highlighting the positive aspects of the public-private partnership that distinct gains accrue to public policy and economic decision-making. A partnership of this nature is collaborative and, contrary to widespread but facile assumptions, is not anti-public sector but is pro-competition.49 Therefore, the new management of IICL in furtherance of the betterment of the corporation has terminated the employees whose services were of no use it. Reliance is placed upon another decision of the Hon'ble Supreme Court in the case of Sindhi Education Society & Anr. v. Government (NCT of Delhi)50 . In this case the court observed that even if Minority Institution which is enjoying special Rules under Art 30 of the Constitution of India, receives Government aid towards dearness allowances for its teaching and non-teaching staff, still then writ does not lie against such institution, as such a Government aided institution cannot be construed as a State or instrumentality of the State within the meaning of Article 12 of the Constitution of India inasmuch as the Government does not retain control either financially, functionally or administratively in the working of such monitory aided institution, enjoying special Rules under article 30.

2. THE RESPONDENT COMPANY IS NOT PERFORMING PUBLIC FUNCTION. 2.1. It is reverentially submitted that XYZ Ltd. erstwhile IICL is not performing a public function or a mandatory public duty and, therefore, would not be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution51. 2.2.It is most respectfully submitted that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting

49

Public Private Partnership ,available at http://www.hindu.com/2002/02/18/stories/2002021800091000.htm (Visited on July 15,2013)

50

(2010) 8 SCC 49

51

G. Bassi Reddy v. International Crops Research Instt.& Anr (2003) 4 S.C.C. 225; Binny Ltd. & Anr v. V. Sadasivan & Ors (2003) 4 SCC 255

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-MEMORANDUM for the RESPONDENT-

writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefore. 52 Thus, resort to Articles 226 and 227 should be discouraged when there is an alternative remedy.53 To intensify this submission, the petitioner relies on Radhakrishna Agarwal v. State of Bihar54; Binny Ltd.55 and Praga Tools Corp. v. C.A.Imanual & Ors56.Reference is also drawn from another decision of the Hon'ble Supreme Court in the case of Poonam v. Sumit Tanwar57, wherein it was held that writ lies only against a person if it is a statutory body or performs a public function or discharges a public or statutory duty or a State within the meaning of Article 12 of the Constitution of India. Thus, it is flagrant that since the Respondent Company does not perform a public function and it should not be regarded as an instrumentality of the State and as such the writ will not lie against such an institution. Confidence is placed upon a judgment of this Court in the case of VST Industries Ltd. v. VST Industries Workers' Union & Anr58. In the said case, this Court held "In Anadi Mukta case this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked." 2.3.It has been noticed earlier that ILDS functions, prior to 1981, were being performed by RIMCL, a Department of Telecommunications. IICL was incorporated under the Indistan Companies Act, 1956 as a wholly owned Government company to take over the activities of erstwhile RIMCL with effect from 1981. The employees of erstwhile RIMCL continue to
52

Visva Bharati v. Smt. Rakhi Debnath And Ors. (1996) 1 CALLT 51 HC; P. Electricity Board v. Regional Provident Fund (2004) IILLJ 40 MP; Basu Distributors Pvt. Ltd. v. Income Tax Officer 2007 292 ITR 29 Delhi; Gita Theatres And Anr. . v. Municipal Corporation (1998) 3 GLR 2591; A.B. Joglekar And Anr. . v. Debts Recovery Tribunal And Anr. III (2004) BC 41, 2002 (5) MPHT 187; Calcutta Municipal Corporation . v. M/S. Bala Bestos India Ltd (1998) 2 CALLT 249 HC, 1998 (1) CHN 492
53

Sri Ramdas Motor Transport Ltd. v.Tadi Adhinarayana Reddy And Ors. AIR 1997 SC 2189; Shyam Kishore and others . v. Municipal Corporation of Delhi AIR 1991 Delhi 104; Municipal Corporation Of Delhi . v. R.P. Khaitan And Anr.1995 IVAD Delhi 883, 1995 (35) DRJ 604, 1996 RLR 13
54

(1977) 3 SCC 457 Supra at page 21 (1969)1 SCC 585 AIR 2010 SC 1384 (2001)1SCC 298

55

56

57

58

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-MEMORANDUM for the RESPONDENT-

work for IICL Non-governmental bodies such as these are just as capable of abusing their powers as is government. To demonstrate, as to who can be regarded as a public servant and which duty can be regarded as public duty to be performed by such public servant, he relied upon a decision of the Hon'ble Supreme Court in the case of P.V. Narsimha Rao . v. State59. Reference is drawn to paragraph 160 of the said decision, it is submitted that a public servant is a person who holds an office by virtue of which he is authorized or required to perform any public duty. Not only such a person must hold an office but he must be authorized or required by virtue of that office to perform public duty meaning a duty in the discharge of which the public or that community at large has interest. Inspiration is drawn from another decision of the Hon'ble apex Court, in the case of Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhya60, in this case it was held that since the school was not established by or under an Act, it is neither a statutory body nor an instrumentality of the State and as such even if any illegality is committed by the school authority in the process of selection of candidates for admission in Class XI in the said school, such illegality on the part of the school authority cannot be challenged before this Court in its Constitutional writ jurisdiction. These observations make it abundantly clear that in order for it to be held that the body is performing a public function, the petitioner would have to prove that the body seeks to achieve some collective benefit for the public or a section of public and accepted by the public as having authority to do so. In the present 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. Therefore the contention of the petitioners cannot be appreciated that the activities of IICL tantamount to public function. 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 IICL cannot be put on the same pedestal as the function performed by private institution in imparting education to children.61

59

AIR 1998 Supreme Court 2120 (2010) 4 SCC 378

60

61

General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP . v. Satrughan Nishad and Ors. (2003) 8 SCC 639

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-MEMORANDUM for the RESPONDENT-

2.4.IICL had merely promised not to retrench any employee, who had stayed as an employee in IICL prior to disinvestment for a period of three years from disinvestment. 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. 2.5.After scaling the facts in the light of the law the counsel would like to summarize the approach of the Honble apex court in the apt wordings of R.P. NAGRATH,J wherein reviewing the catena of decisions his lordship lucidly elucidated that62: The functions and activities of institutions relating to recruitment of their staff, governance of service conditions of such staff or other internal management related affairs are of purely private character and these are not relatable to the "public duty" which such institution/body or a person perform.

B. WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND OFFICE MEMORANDUM AND THE RECOMMENDATIONS OF MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?

1. THE TERMINATION OF EMPLOYEES WAS FAIR, JUST AND PROPER.

1.1 It is most respectfully submitted that it would be appropriate to draw attention to para 11 of the agreed statement of facts that there was a restriction on the new management of IICL to not retrench any employee for a period of three years from the date of disinvestment in the year 2000. It is further contended that the termination of services from the new management of IICL was done in the year 200963 which was nine years after the date of disinvestment. It is in light of above concluded that the termination of employees was not in violation of the share purchase

62

Mrs. K. Naqvi v. State of Punjab and Ors 2004ILR 2(Punjab and Haryana)11 Para 15 of statement of facts

63

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-MEMORANDUM for the RESPONDENT-

and share-holding agreement and the new management of IICL was well within their bounds to terminated the services of such employees.

1.2 The respondent submits that the termination of employees was fair and proper and it was not in violation of the principles of natural justice. The respondent most humbly submits that in the instant case the respondent company is a purely private entity and it is not bound by the recommendation dated 3rd May, 2001 of the Ministry of Social Justice and Empowerment, Government of Indistan. To substantiate further reliance is placed upon the case of Vaish Degree College64, which was run by a society registered under the Societies Registration Act; the services of the Respondent-Principal of the College were terminated by the Appellant-society which caused initiation of proceedings in a civil suit. Rejecting the claim of reinstatement in services, the Supreme Court held as under: On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This Rule, however, is subject to three well recognised exceptions-(i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute. Reliance is also placed upon Integrated Rural Development Agency's case 65 , where the relationship between the Integrated Rural Development Agency and the Respondentemployee was based on contract and was purely one of Master and Servant. Relying upon the judgment in Nandganj Sihori Sugar Company Ltd. Rae Bareli v. Badri Nath Dixit66., their Lordships held that the relief of reinstatement could not be granted as by affording the relief of reinstatement or back wages, will, in fact, be granting a specific performance of contract of service; which could be done only in the exceptional or rare cases.
64

1976 SCR (2)1006 1995 SCC, Supl. (2) 495 (1991) 3 S.C.C. 54

65

66

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-MEMORANDUM for the RESPONDENT-

1.3 IICL being a private entity would not be bound by Constitutional Mandate of the state Unlike the private parties the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. However, the new management of IICL being a purely private entity is not bound by the constitutional mandates of the state and is free to choose whether to continue utilizing the service of an employee or to terminate such service, based on a contract.

1.4 Salary in lieu of notice is completely legal The petitioner submits that in the instant case, the employees were given three months advance salary at the time of termination of their services. It has been held by this Honble Court that the purpose of serving a notice prior to the termination of service is not to leave the employee suddenly in lurch with no resources67. It is just and fair that employees be given enough time to seek alternative source of livelihood. It has also been held by this Honble court that providing three months salary in lieu of notice is not illegal but rather in the favor of employees as it gives them sustenance for three months and ample free time to explore alternative jobs68.

67

GRIDCO Ltd. V. Sadananda Doloi ; Asst. Engineer v. Ram Charan DAV Managing Committee v. Surender Rana

68

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-MEMORANDUM for the RESPONDENT-

2. THE OFFICE MEMORANDUM AND THE RECOMMENDATION OF THE MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT CANNOT BE ENFORCED

2.1 The Office Memorandum cannot have retrospective effect. The respondent humbly submits that the disinvestment of IICL was done by the Government of Indistan in the year 2000 and that the Office Memorandum was passed on 13th August 2001. Furthermore, an office memorandum does not, ordinarily have retrospective effect. Reliance is placed upon the judgement of this Honble Court in the case of Sonia v Oriental Insurance Co. Ltd69. Wherein it was held as follows:An office memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication It is pleaded that in the instant case, the office memorandum reads as follows: In case the Government disinvests its equity in any public sector units or autonomous body to the extent of 51% or more, it shall specify adequate safeguards for protecting the interests of the absorbed employees of PSUs or autonomous bodies

The language used in the memorandum indicates only retrospective effect i.e. in case the government disinvests. Once it is established that the memorandum was intended to have prospective effect which is clear from the language used, the respondent submits that the office memorandum cannot be specifically enforced and the Government of Indistan cannot make any new regulation for the welfare of the employee which were absorbed prior to the passing of the office memorandum.

69

Appeal (civil) 3521 of 2007

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-MEMORANDUM for the RESPONDENT-

2.2 THE

RECOMMENDATION

CANNOT

BE

ENFORCED

IN

VIEW

OF

LEGITIMATE EXPECTATION

a) There has been no discrimination It is humbly submitted that in the instant case, it has been clearly mentioned in the statement of facts70 that: .however, it is not the case that the services of all the employees from that category has been terminated The foregoing para of the factual matrix makes it clear that there has been no discrimination against the said category of employees. A mere coincidence that most of the employees whose services were terminated belonged to the backward class of employees does not necessitate discrimination against the said employees. It is further wrong on the part of petitioner to presume out of thin air that the ground on which the services of employees have been terminated is the factum of them belonging to the backward classes whereas there is no mention as to what is the ground for termination of services.

b) The senior managerial employees should be excluded from affirmative action Affirmative action is a measure used by welfare states all over the globe to uplift the disadvantaged sections of the society. Any further affirmative action once the original task of reservation is complete would result into reverse discrimination and become violative of Art. 14 of the Constitution of Indistan. To further augment the contention, inspiration is drawn from Jeevan Reddy, J. who wrote the majority judgment in Indra Sawhney (supra) 71and made a
reference to his judgment in Narayana Rao and Anr. v. State of A.P. and Anr.,72 wherein the learned Judge opined: "Article 15(4) or Article 16(4) are not designed to achieve abolition of caste-system-much less to remove the meanness or other evils in the society. They are designed to provide opportunities in education, services and other fields to raise the educational social and economic levels of those lagging behind, and once this is achieved, these Articles must be deemed to have served their purpose. If so, excluding those who have already attained such economic well-being (inter-linked as it is with social and educational advancement) from the special benefits provided under these clauses cannot be called unreasonable or discriminatory or arbitrary much less contrary to the intention of the
70

Para 15 of the statement of facts AIR 1993 SC 477 AIR 1987 AP 57

71

72

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-MEMORANDUM for the RESPONDENT-

founding-fathers. It can be reasonably presumed that these people have ceased to be socially if not educationally backward and hence do not require the preferential treatment contemplated by Articles 15(4) and 16(4). Moreover, in the face of the repeated pronouncements of the Supreme Court referred to above, these arguments cannot be countenanced. Not only it does not amount to creating a class within a class, it is a proper delineation of classes..."73

It is humbly submitted that in the instant case, the employees in question are already senior managerial employees which necessitates their developed economic and educational status. It is therefore pleaded before this Honble Court that any affirmative action in favour of the petitioner employees would result into reverse discrimination and this be violative of Art. 14 of the Constitution of Indistan.

c) The principle of legitimate expectation is inapplicable as the decision is merely a part of change in administrative policy. It has been held under English law that the decision maker's freedom to change the policy in public interest cannot be fettered by the application of the principle of substantive legitimate expectation. In R. v. IRC, ex p Preston74 the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior consultation with the prisoner, Lord Scarman observed: "But what was their legitimate expectation. Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by statute upon the minister can in some cases by restricted so as to hamper or even to prevent changes of policy."

To a like effect are the observations of Lord Diplock in Hughes vs. Department of Health and Social Security (HL) 75 : "Administrative policies may change with changing circumstances, including
73

Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors . (1969) 1 SCR 103; M. R. Balaji v. State of Mysore ((1963) Supp 1 SCR 439; State of A. P. v. P. Saga AIR 1975 SC 563; State of Uttar Pradesh v. Pradip Tandon and Ors 1985 SC1495; Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562.
74

[1985] AC 835 1985 AC 776 (788)

75

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-MEMORANDUM for the RESPONDENT-

changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government." 76

On the facts of the case in the instant matter, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is, self-evidently, a question of fact and this Honble court decides only upon the questions of law. The respondent concedes that the petitioner shall have a legitimate expectation of affirmative action from the state in view of the constitutional provisions. However, IICL, ever since its divestment in 2000 has become a private entity and the absorbed employees legitimate expectation has ceased to exist as a private entity cannot be bound by the constitutional provisions which were intended to bind the state. It was indicated in the case Union of India and Ors. vs. Hindustan Development Corporation and Ors.77: The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable. It is humbly submitted that in the case, the expectation is not protectable. Arguendo this court finds merit in the legitimate expectation of the petitioner and directs the respondent to undertake affirmative action; it would amount to making mandatory a constitutional provision on a private entity which would be against the intention of the framers of the constitution which has made such provisions mandatory only on the state and not on private entities. It is therefore pleaded that in light of above, the recommendation shall not be specifically enforced.

76

Mr. Detan's article "Why Administrators should be bound by their policies" (Vol. 17) 1997 Oxford Journal of Legal Studies, p. 23
77

1993 (3) SCC 499

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-MEMORANDUM for the RESPONDENT-

THE PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY GRACIOUSLY BE PLEASED TO: A. HOLD THAT IICL & ITS NEW MANAGEMENT IS NOT AMENABLE TO THE WRIT JURISDICTION. B. DECLARE THAT TERMINATION OF SERVICES OF EMPLOYEES WAS NOT ARBITRARY. C. DECLARE THAT RECOMMENDATION OF SOCIAL JUSTICE AND

EMPOWERMENT DEPARTMENT CANNOT BE SPECIFICALLY ENFORCED.

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR RESPONDENT

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