BEFORE THE HONBLE HIGHCOURT OF JHARKHAND

AT RANCHI

Writ Petition No/2017

(Under Article 226 of the Constitution of India)

-IN THE MATTER OF-

Soshrit Avra Karmachari Morcha..Petitioner

VERSUS
Indian Mica Corporation Ltd.........Respondent

Memorial on behalf of the Petitioner

DRAWN AND FILED BY COUNSEL ON BEHALF OF THE PETITIONER

RASHI PANDIT
ROLL NO: - 402
3rd Year, Section- A

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 TABLE OF CONTENTS

Index of Authorities...3

A. List of Cases
B. Books & Commentaries
C. Acts, Statutes, Treaties & Conventions
D. Internet Sites

List of Abbreviations..4

Statement of Jurisdiction5

Statement of Facts...6

Statement of Issues.7

Summary of Arguments.8

Arguments Advanced.9

Prayer..15

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 INDEX OF AUTHORITIES

LIST OF CASES
A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani ----------- 9
Ajay Hasia v. Khalid Majit --------------------------------------------------------------------------------- 11
Ashok v Union of India -------------------------------------------------------------------------------------- 14
Confederation of Ex-serviceman Association v. Union of India --------------------------------------- 14
Gullupalli Nageshwara Rao v. APSRTC------------------------------------------------------------------ 15
Haryana State Industrial Corporation v. Cork Mfg. Co. ------------------------------------------------ 9
Indian Metals & Ferro Alloys Ltd. v. State --------------------------------------------------------------- 16
Jagroop v. State ---------------------------------------------------------------------------------------------- 16
Javed And Ors. vs State Of Haryana , -------------------------------------------------------------------- 13
Mrs. Maneka Gandhis case -------------------------------------------------------------------------------- 13
Onkar Lal Bajaj v. Union of India ------------------------------------------------------------------------- 10
Pawan Kumar v. State of Haryana, (2003) ---------------------------------------------------------------- 9
Ramana Dayaram Shetty v. the International Airport Authority of India and Ors ------------------ 12
Som Prakash v. Union of India ----------------------------------------------------------------------------- 13
Sripur Paper Mills v. Commissioner of Wealth Tax ----------------------------------------------------- 9
Whirlpool Corporation v. Registrar of Trade Marks ---------------------------------------------------- 9

Books & Commentaries

o Jain, M.P., Indian Constitutional Law, Sixth Edn., Lexis Nexis Butterworths Wadhwa,
Nagpur.
o Massey, I.P., Administrative Law, 8 th Edn., Eastern book Company, Lucknow, 2012.
o Jain, M.P. & Jain, S.N. Principles of Administrative Law, 7 th Edn., Lexis Nexis,
Butterworths, Wadhwa, Nagpur, 2011.

Acts & Statues

Constitution of India, 1950

Internet Sites

1. www.manupatra.com

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 LIST OF ABBREVIATIONS

& - And
A.I.R. - All India Reporter
Honble - Honorable
Sec - Section
V. - Versus
Rs. - Rupees
No. - Number
SCC - Supreme Court Cases
Ors. - Others

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 STATEMENT OF JURISDICTION

The Petitioner in the present case has approached the Honble High Court of Jharkhand under
Art. 2261 of the Indian Constitution.

1
226: Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

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 STATEMENT OF FACTS

o Chotanagpur Mica Company Ltd (CMCL), subsidiariy of Indian Mica Corporation

Limited (IMCL), was established originally by HGC during 1920s but later in the wake
of nationalization the company was taken by Indian government.
o After the formation of new state the 89% of fully paid up shares were acquired by
Jharkhand and rest with Central government having control and management of Ministry
of Mines of the state government.
o Company has the Board of Directors representative from Reserve Bank of India,
Securities & Exchange Board of India and other government organization.
o But after 2002 the Ramgarh mines of mica has been fully exhausted and during 2004 it
has been totally abandoned and there was no income of for this company since 2003 and
onwards.
o The holding company i.e. IMCL decided to wind up the company and board of company
filed one application to BIFR on 2005 to declare CMCL as sick industry. But due to
constant agitations from workers and staffs the company did not proceed and made a joint
venture with Bihar Mica Company (BMCL).
o In 2006, CMCL Employees Union filed one writ at High Court for enforcement of
fundamental rights guaranteed under Article 21 and 19(g) of Indian constitution against
the company but the High Court rejected the petition as Government Company was not
a state and writ did not lie there.
o In 2009, one Jassmine Munshi, Chairperson of Ratan Group of Companies, made one
application to department of Disinvestment, Ministry of Finance, Government of India
for acquiring of the CMCL but no one entertained the proposal. After completion of joint
venture, again at 2011 company filed one suit for winding up of CMCL and official
liquidator was appointed by the High Court but all the workers and staffs blocked the
main gate of office and did not allow the proceedings.
o After January 2012 company did not pay any salary or wages to any of its workers or
staffs. Now they have formed one new association i.e. Soshrit Avra Karmachari Morcha
and filed one writ against the board and Ministry.

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 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE PETITION IS VALID UNDER ARTICLE 226 OF THE

INDIAN CONSTITUTION?

ISSUE 2: WHETHER IN THE PRESENT MATTER PRINCIPLE OF NATURAL

JUSTICE IS BEEN VIOLATED?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PETITION IS VALID UNDER ARTICLE 226 OF THE

INDIAN CONSTITUTION?

It is humbly submitted before the honble court that the present petition is valid under Article
226 of the Indian Constitution. Such a writ petition can be filed in the case of violation of
Fundamental rights and the same was done in the present case.

ISSUE 2: WHETHER IN THE PRESENT MATTER PRINCIPLE OF NATURAL

JUSTICE IS BEEN VIOLATED?

It is humbly contended before the honble court that in the present matter principle of Natural
Justice has been violated by the respondents. The petitioners were driven out of their jobs and
werent even involved in the winding up process. Their right of being heard was violated. Also
there were irregularities going in the managing company by not entertaining the revival process
or disinvestment process.

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 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PETITION IS VALID UNDER ARTICLE 226 OF THE

INDIAN CONSTITUTION?

I. JURISDICTION OF HIGH COURT UNDER ARTICLE 226 CAN ALWAYS BE INVOKED

It is humbly contended before the honble court that the petition is maintainable under Article
226 of Indian Constitution. Jurisdiction of High Court can always be invoked when it is the
matter of violation of fundamental rights or whenever a question of law of general public
importance arises. The jurisdiction conferred under Art. 226 on the High Court are corrective one
and not a restrictive one.2 A duty is enjoined upon the High Court to exercise its power by setting
right the illegality in the judgments is well-settled that illegality must not be allowed to be
perpetrated and failure by the High Court to interfere with the same would amount to allowing
the illegality to be perpetuated.3

It has been held in plethora of cases that when the question of law of general public importance
arises, the jurisdiction of High Court can be invoked. In the present case, the issue involves
matter of General Public Importance and hence, entitled to be maintainable.

II. THE EXISTENCE OF AN ALTERNATIVE REMEDY IS NO BAR TO FILE PETITION

It is humbly submitted before the Honble Court that the remedy under Article 226 of the
Constitution is discretionary remedy.4 The Court is vested with power to entertain the petition
where there occurs gross miscarriage of justice and effective remedy is not available. This rule of
exhaustion of the statutory remedy is not rigid but somewhat flexible and it is primarily a matter
of the discretion of the writ court.5 Reliance is placed upon the decision in the case of
Whirlpools Corp. v. Registrar of Trade Marks6, in which it was held by the Apex Court that the

2
Haryana State Industrial Corporation v. Cork Mfg. Co. AIR 2008 SC 56.
3
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
4
Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520
5
A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506
6
Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22.

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jurisdiction of the High Court in entertaining a writ petition under article 226 of the Constitution
would not be affected although there exists alternative statutory remedies.

Lastly, it is submitted that a writ petition is maintainable when the lis involves a public law
character and when the forum chosen by the parties would not be in opposition to grant
appropriate relief.7 Question as to when discretionary jurisdiction is to be exercised or refused
has to be determined having regard to the facts and circumstances of each case. No hard and fast
rule can be laid down in this regard.8

7
.P. Jain, Indian Constitutional Law, 415(7th Ed., 2014).
8
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673

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ISSUE 2: WHETHER IN THE PRESENT MATTER PRINCIPLE OF NATURAL
JUSTICE IS BEEN VIOLATED?

It is humbly submitted before the honble court that the principle of Natural Justice has indeed
been violated in the present case and the rejection of the petition by the Honble High Court was
the part of such violation.

I. GOVERNMENT COMPANY- A STATE

It is humbly contended before the honble court that the rejection of writ petition by the High
Court on reasoning that the government company is not a state is wrong. The Supreme Court in
the case of Ajay Hasia v. Khalid Majit9 said that a Government company may symbolize state.
Honble Justice Bhagwati observed as follows:

It is immaterial for the purpose whether the corporation is created by the statute
or under a statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it created. The inquiry has to be not as to how
juristic person is born but why it has been brought into existence. The corporation
may be a statutory corporation created by statute or it may be a Government
company formed under the Companies Act, 1956, or it may be the society
registered under Societies Registration Act, 1860 or any other similar statute.
Whatever be its genetic origin, it would be an authority within the meaning of
Article 12 if it is an instrumentality or agency of the Government and that would
have to be decided on a proper assessment of the facts in the light of the relevant
factors. The concept of instrumentality or agency of the Government is not
limited to a corporation created by the statute but is equally applicable to a
company or society and in a given case it would have to be decided on a
consideration of the relevant factors whether the company or society is an
instrumentality or agency of the Government so as to come within the meaning of
the expression authority in Article 12.

Where more than 97% of the share capital of the company has been contributed by the State
Government and the financial institutions, controlled and belonging to the Government of India
on the security and undertaking of the State Government, that the memorandum of association
entrusted the company with important public duties, that out of 12 directors 5 were Government
and departmental persons, beside other elected directors also were to be with the concurrence

9
AIR 1981 SC 487

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and nomination of the Government, it was clear that the State Government had deep and
pervasive control of the company and its day to day administration, and the company was
nothing but an instrumentality and agency of the State Government, and the physical form of the
company was merely a cloak or cover for the Government. Question whether an entity is a State
within the meaning of Article 12 has to be decided by taking into consideration the cumulative
facts as established and that whether such body or entity is financially, functionally and
administratively dominated by or under the control of the Government.

The case of Ramana Dayaram Shetty v. the International Airport Authority of India and
Ors10dealt majorly with the issue of a Government Company being a State. The Supreme Court
elaborated on a test, which would suggest whether the corporations incorporated under law are
agency or an instrumentality of the government. The test11 may be summed up as:

(i) The source of the share capital;

(ii) The extent of State Control over the Corporation and whether it is deep and pervasive;

(iii) Whether the functions of the Corporation has a monopoly status;

(iv) Whether the functions of Corporation are of public importance and closely related to
governmental functions; and

(v) Whether, what belonged to a Government Department formerly was transferred to the
Corporation.12

One of the consequences of the above test of agency or instrumentality was that the Government
Companies as under Section 617 of the Companies Act, 1956 were started to be regarded as
State as given under Article 12 of the Constitution.

This is evident from a series of cases where the Apex Court has held that government companies
fall within the definition of State as given under article 12. In the case of Som Prakash v. Union

10
Ramana Dayaram Shetty v. the International Airport Authority of India and Ors. 1979 AIR 1628
11
See also Ajay Hasia v. Khalid Mujib
12
PUBLIC SECTOR UNDERTAKINGS / COMPANIES AND ARTICLE 12 OF CONSTITUTION OF INDIA |
CORPORATE LAW DOSSIER, http://coporatelaws.wordpress.com/2010/05/11/public-sector-undertakings-
companies-and-article-12-of-constitution-of-india/

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of India13, the question was whether Bharat Petroleum Corporation, which is a government
company registered under the Indian Companies Act, would be regarded as an authority or state
under article 12 of the Indian Constitution. The Court held that the company would fall under
article 12. The company should be regarded as an alter ego of the government.

II. VIOLATION OF ARTICLE 21

It is humbly contended before the honble court that there has indeed been a violation of Article
21 of the constitution and subsequently the violation of Natural Justice in the present case.

.Article 21 of the Constitution states that----

Protection of life and personal liberty i.e. No person shall be deprived of his life or personal
liberty except according to procedure established by law

In Mrs. Maneka Gandhis case14 it was forcefully urged that the fundamental right to life and
personal liberty emanating from Article 21of the Constitution should be allowed to stretch its
span to its optimum so as to include in the compendious term of the Article all the varieties of
rights which go to make up the personal liberty of man including the right to enjoy all the
materialistic pleasures. 15

According to Justice Bhagwati the principle of reasonableness is an essential element of Article

14 and the procedure contemplated by Article 21 must answer the test of reasonableness in order
to be in conformity with Article 14. The procedure followed by the state must be right and just
and fair and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and
the requirement of Article 21 would not be satisfied.

Here the procedure followed by the government of rejecting the petition of a the union and not
hearing the workers are not based on just and fair ground but they are arbitrary and it gives state
unlimited power. The right to life guaranteed under article 21 embraces within its sweep not only

13
1981 AIR 212
14
Maneka Gandhi v. Union of India (1978) 1 SCC 248
15
Javed And Ors. vs State Of Haryana , AIR 2003 SC 3057

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physical existence but the quality of life. If any statutory provisions run counter to such a right, it
must to be held unconstitutional.16 .

The Right to Life and personal liberty was made in order to protect the individual from the
arbitrary action of the state. This right to personal liberty is immunity from wrongful detention as
enshrined in Magna Carta and it was made in order to avoid unlawful arrest. In the Magna Carta
times this right of personal liberty was evolved against the unlawful detention practised by the
king. Every person is born with certain rights as per the natural law i.e. justice, liberty, freedom,
fairness and equality. Liberty of a person is a natural right. Personal Liberty of a person is
against the arbitrary arrest and also against the arbitrary action of the state.

The right of life and personal liberty can only be taken away by procedure established by law.
But this cannot be applied to those laws which are arbitrary and vague. The procedure of law
must be right, fair and just. The procedure established by law must have the essential element of
natural justice. There are two important elements of the doctrine of natural justice that must be
present in the procedure established by law. They are

a. nemo debet esse judex in propria causa means that no one shall be a judge in own cause.
b. audi alteram partem which means that no decision shall be given against a party without
affording him a reasonable hearing

In Maneka Gandhi case it was observed that Article 21 requires that there should be some form
of proceedings before a person can be condemned either in the respect of his life and his liberty.

In Ashok v Union of India17 it was said that right to life and personal liberty contains all those
aspects of life which make the life meaningful, complete and worth living. Article 21 safeguards
the individual against the arbitrary and illegal actions not only on the part of the executive but
also on the part of the legislature. Any law made by the government imposing restriction must be
fair, just and reasonable.

It is humbly submitted that Article 21 of the petitioner is violated.

16
Confederation of Ex-serviceman Association v. Union of India (2006)8 SCC 399
17
AIR 1997 SC 2298

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 III. AUDI ALTERAM PARTEM: THE RULE OF FAIR HEARING

The principle of audi alteram partem is the basic concept of the principle of natural justice. The
omnipotence inherent in the doctrine is that no one should be condemned unheard. In the field of
administrative action, this principle has been applied to ensure fair play and justice to affected
persons. Its application depends upon the factual matrix to improve administrative efficiency,
expediency and to mete out justice. The procedure adopted must be just and fair.

The expression audi alteram partem simply implies that a person must be given an opportunity to
defend himself. This principle is a sine qua non of every civilized society. Corollary deduced
from this rule is qui aliquid statuerit, parte inaudita altera aeuquum licet dixerit, haud aequum
facerit i.e. he who shall decide anything without the other side having been heard although he
may have said what is right will not have done what is right. The rule of fair hearing is a code of
procedure, and hence covers every stage through which an administrative adjudication passes,
starting from notice to final determination.

The expression one who decides must hear which is popular in common law jurisdiction is
known by the term institutional or anonymous decisions in American law. Unlike law courts,
the decision in many administrative proceedings is not the decision of one man from start to
finish.

Often one person hears and another decides. The divided responsibility may work contrary to the
concept of fair hearing In Gullupalli Nageshwara Rao v. APSRTC18 is a case where an
administrative action was challenged on the ground that the one who decides did not hear. In this
case, the petitioners challenged the order of the government confirming the scheme of road
nationalization. The Secretary of the Transport Department gave the hearing but the final
decision came from the Chief Minister. The SC held that this divided responsibility was against
the concept of fair hearing because if one who decides does not hear the party, he gets no
opportunity of clearing doubts in his mind by reasoned arguments.

18
1959 AIR 308

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In case of Indian Metals & Ferro Alloys Ltd. v. State19 it was held that Fundamental requisite of
the principles of natural justice is an opportunity to be heard before any person is prejudicially
affected by any administrative action. Also in case of Jagroop v. State20 it was said that a party
has a right of hearing if an action of the authority would visit him with civil or pecuniary
consequences.

It is hence contended that the workers and employees right to be heard was violated and they
were not given chance to put forward there contentions.

19
1994 Lab. I.C. 1203
20
A 1995 Punj. 303

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honble Court may graciously be pleased to adjudge and declare

1) That the petition is maintainable;

2) That there is a violation of natural justice.

And pass any order relief in favor of the petitioners which is in conformity to the principles of
Justice, Equity and Good Conscience.
All of which is respectfully submitted

Sd/-

Counsel for the Petitioners

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