-MEMORANDUM for the PETITIONER-

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 35 Page 2 of 35 Page 7 of 35 Page 8 of 35 Page 10 of 35 Page 11 of 35 Page 13 of 35 Page 35 of 35

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INDEX OF AUTHORITIES

TABLE OF INDIAN CASES S No. 1. Name of Case Sukhdev Singh & Ors. v. Bhagat Ram Sardar Singh Raghuvanchi & Anr. (1975) 3 S.C.R. 619 2. Ramana Dayaram Shetty v. The International Airport Authority of India & Anr. (1979) 3 S.C.R. 1014 3. Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay Narain Vajpayee (1980) 2 S.C.R. 773 4. Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay Narain Vajpayee (1980) 2 S.C.R. 773 5. 6. 7. 8. Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors (1981) 2 S.C.R. 79; 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 9. Workmen of Hindustan Steel Ltd. & Anr. v. Hindustan Steel Ltd. & Ors. (1984)Supp. S.C.C. 554, 560 10. P.K. Ramachandra Iyer & Ors. v. Union of India & Ors.(1984) 2 S.C.R. 141 11. A.L. Kalra v. Project and Equipment Corporation of India Ltd., ([1984) 3 S.C.R. 316 12. West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh & Ors. (1985) 3 S.C.C. 116 13. 14. 15. Praga Tools Corporation v. C.A. Imanual & Ors.(1969) 3 S.C.R. 773 State of Bihar v. Union of India & Anr.(1970) 2 S.C.R. 522 S.L. Agarwal v. General Manager, Hindustan Steels Ltd., (1970) 3 S.C.R. 363 16. 17. 18. Sabhajit Tewary v. Union of India & Ors. (1975) 3 S.C.R. 616 S.C. Dhanoa v. Municipal Corporation Delhi & Ors. (1981) 3 S.C.C. 431 Som Prakash Rekhi v. Union of India AIR 1981 SC 212 17 17,18 13,14 15,19 15 15 15 15 15 15 15,17,18, 14,15,18 15 15 9 15 3,15,18 Pg No. 26,14,18

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-MEMORANDUM for the PETITIONER-

19.

R.D. Shetty v. International Airport Authority of India & Ors. (1979) 3 SCR 1014

17,18

20.

Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another 18,23 v. N. Seetharama Raju AIR 1990 A.P. 171

21. 22.

University of Madras v. Santa Bai AIR 1954 Mad. 64

17,26

Mysore Paper Mills Ltd v. Mysore Paper Mills Officers Association 15 (2002) 2 SCC 167; AIR 2002 SC 609

23. 24. 25. 26.

Andi Mukti S.S.M. V.S.S. J.M.S. Trust v. V. R. Rudani (1989) 2 SCC691 Tekraj Vasandi v. UOI (1988) 1 SCC 236 Chander Mohan Khanna v. NCERT (1991) 4 SCC 578 Steel Authority Of India Ltd v. National Union Water Fropnt Workers (2002) 7 SCC 1 AIR SC 3527

18 17,19 17 17

27.

Air India Statutory Corporation v. United Labour Union & Ors. (1997) 9 SCC 377

17,20

28. 29. 30.

State of West Bengal v. Subodh Gopal Bose 1954 AIR 92

18

Ravneet Kaur v. Christian Medical College, Ludhiana 1997 (3) R.S.J. 676; 18 K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and another (1997) 3 S.C. 455 19

31.

Unni Krishnan, J.P and Ors. v. State of Andhra Pradesh and Ors. 1993 (2) 19 R.S.J. 1

32. 33.

Rajasthan state electricity board v. Mohanlal, AIR 1967 SC 1857

19,23

Deepak Kumar Biswas v. Director of Public Instructions (1987) 2 SCC 18 252

34. 35.

Dwarkanath v. Income Tax Officer (1965)3 SCR 536 Mrs. K. Naqvi v. State of Punjab and ors (2004)ILR 2 Punjab and Haryana 11

18 18

36. 37. 38. 39.

M/s. Zee Tele Films Ltd. v. Union of India AIR 2005 SC 2677 Delhi Science Forum v. Union of India (1996) 2 SCC 405 Lucknow Development Authority v. M.K. Gupta (1984) 1 SCC 243 Star Enterprises & Ors. v. C.I.D.C. of Maharashtra Ltd (1990) 3 SCR 280

19 19 19,20 19

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40.

Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) 2 SCC 161

22

41.

Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. 22 (1998) 8 SCC 1

42.

LIC of India & Anr. v. Consumer Education & Research Centre & Ors 1995 SCC (5) 482

22

43.

G.B. Mahajan & Ors. v. Jalgaon Municipal Council & Ors. (1991) 3 SCC 91

23

44. 45. 46.

Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers (1992) 1 SCC 534 Ramesh Ahluwalia v. State of Punjab & Ors.C.A.No.6634 of 2012 Rohtas Industries Ltd. & Anr. v. Rohtas Industries Staff Union & Ors. (1976) 2 SCC 82

23,24 25,26 26

47.

Life Insurance Corporation of India vs. Escorts Ltd., And other (1986) 1 SCC 264

26

48. 49.

Engineering Mazdoor Sabha 1963 Supp.(1) SCR 625, 640 Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju AIR 1990 AP 171

27 15

50.

Sanjay Sales Corporation v. National Mineral Department Corporation Ltd. AIR 1993 AP 62 at p 70.

15

51. 52. 53.

Shambhu Prasad Agarwal & Ors. v. Bhola Ram Agarwal 2000 9 SCC 714 Dr.Bal Krishna Agarwal v. State of U.P. & Ors. (1995)1 SCC 614 Workmen of Motipur Sugar Factory v. Motipur Sugar Factory Pvt Ltd.(1965) AIR 1803

23,25 27 28

54. 55. 56. 57. 58.

Somashankara Sastry v. State of Andhra Pradesh AIR 1959 SC 1378 W.B.S.E.B v. DeshBandhuGhosh (1985) 3 SCC 116 Ranjit Thakur v. Union of India and Ors AIR 1987 SC 2386 Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454

28 29 29 27,28,29

Supreme Court Employees' Welfare Association v. Union of India and Anr. 30 (1989) 4 SCC 187

59. 60.

Saraswati Industries Syndicate Ltd. v. Union of India AIR 1975 SC 460 Director, Institute of Management Development, U.P.

30,29 vs. 31

PushpaSrivastava (Smt.) 1992 (4) SCC 33

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-MEMORANDUM for the PETITIONER-

61. 62.

Ashwani Kumar &Ors. vs. State of Bihar & Ors. JT 1997 (1) SC 243 Daily Rated Casual Labour Employed under P&T Department through Tar MazdoorManch vs. Union of India and Ors. 1988 (1) SCC 122

30,31 31

63. 64. 65.

NarenderChadha and Ors. Vs. Union of India and Orr. 1986 (2) SCC 157 State of Haryana and Anr. vs. Ram Diya 1990 (2) SCR 431

32 32

State of U.P. and Ors. vs. Dr. Deep NarainTripathi and Ors. 1996 (8) SCC 32,33 454

66.

Navjyoti Co-op. Group Housing Society vs. Union of India 1992 (4) SCC 477

31,32,33

67.

Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries 1993 (1) SCC 71

33,34

68.

Union of India and Ors. vs. Hindustan Development Corporation and Ors 1993 (3) SCC 499

33

69.

Madras city Wine Merchants' Association vs. State of Tamil Nadu,1994 (5) 34 SCC 509

70. 71.

M.P. Oil Extraction vs. State of M.P 1997 (7) SCC 592 National Building Construction Corporation vs. S. Raghunathan& Others. 1998 (7) SCC 66

34 34

72. 73.

Binny Ltd. v. Sadasivan (2005) 6 SCC 657 Federal Bank Ltd. v. Sagar Thomas and Ors (2003) 10 SCC 733)

25 25

LIST OF FOREIGN CASES 74. 75. 76. 77. R (Heather) v. Leonard Cheshire Foundation [2002] EWCA Civ. 366 R (A) v. Partnerships in Care Ltd [2002] EWHC 529 R (Beer) v. Hampshire Farmers Markets Ltd [2003] 31 EG 67 Appeal of South Africa in Mittal Steel South Africa Limited (previously known as ISCOR Limited) v. Mondli Shadrack Hlatshwayo case No.326 of 2005 78. Council of Civil Service Unions and Ors. v. Minister for the Civil Service [1984] 3 AER 935 79. M. R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 (2) AER 680 29 25 23 23 23 25

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80. 81.

Chief Constable of the North Wales Police v. Evans 1982 (3) AER 141 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223

29 29

82. 83. 84. 85.

Breen vs. Amalgamated Engineering Union [1971] 1 All. E.R. 1148 R. v. Secretary of State [1989] 1 QB 26 Home Department, ex parte Ruddock and Ors 1987 (2) AER 518 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 AER 680

33 29 32 32

86.

Regina (Daly) v. Secretary of State for the Home Department (2001) 2 32 AC 532 at 548

87. 88. 89. 90. 91.

R. v. IRC ex p Preston 1985 AC 835 Attorney-General of Hong Kong. vs. Ng Yuen Shiu [1983] 2 All ER 346 Schmidt vs. Secretary to State for Home Affairs 1969 (2) Ch 149 Attorney General for New South Wales vs. Quin [1990] 64 Aust. LJR 327 Findlay vs. Secretary of State for the Home Department [1984] 3 All E.R. 801

31 31 32 32 32

LIST OF BOOKS and ARTICLES 1. Corporate Social Responsibility http://www.research.utoronto.ca/corporate-social-responsibility( Visited on July 13,2013) 2. Disinvestment Bad or Good http://www.indiabix.com/group- 16 discussion/is-disinvestment-really-that-good-forindia-or-is-a-rethink-in-order/ (Visited on July,13 2013) 16

3.

V. N Shuklas ,Constitution of India (Eastern Book Company, Lucknow )

18,23,25

4.

Public Private Partnership available at http://www.rbi.org.in/scripts/BS_VIEWContent.aspx?ID=1912 (Visited on July 15, 2013)

19

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-MEMORANDUM for the PETITIONER-

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 PETITIONER MOST HUMBLY AND RESPECTFULLY SUBMITS 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 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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-MEMORANDUM for the PETITIONER-

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. 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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-MEMORANDUM for the PETITIONER-

SUMMARY OF ARGUMENTS

I.

WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. IS AMENABLE TO WRIT JURISDICTION?

A. Considering the present composition of share-holding, government of Indistan prima facie holds 31% shares in IICL and still remains the largest single stake holder. So it becomes manifest that it is under complete control of the Government. Hence, it is state under article 12 of the constitution of Indistan.

B. IICL and its new management cannot be said to have become an absolute private entity as the activities carried on by the IICL & its new management is vital to public interest and has potential to affect the socio- economic development and growth of the nation. Respondent is, thus, performing a public duty and a positive obligation towards its employees and customers exists. Therefore, it is amenable to writ jurisdiction C. Respondents herein have monopoly over the international communication, as IICL is the gateway of the world and even a private function which is performed for public benefit would be a public function. D. Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226.

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-MEMORANDUM for the PETITIONER-

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

EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?

A. The long period of service rendered and the consequences and the benefits available to the concerned employee who had rendered such service without any blemish then the principles of legitimate expectation (in terms of affirmative action) are squarely applicable as it is a constitutional mandate.

B. The equality principle has been adopted by way of affirmative action by the Government in making
reservations in their favour both as regard admission in educational institutions and public employment. The doctrine of equality is the fibre with which constitutional scheme is woven.

C. In the instant case, there was a reasonable expectation on behalf of the employees that once they have served for such long period of time under the state then their services shall not be terminated abruptly as such without giving any reason or notice to the effect whatsoever. D. There has been no inquiry prior to the termination of employees. Furthermore, the new management of IICL has not given any specific grounds on which such termination was based. Thus, it becomes manifest that the administrative action was arbitrary and opposed to principles of natural justice.

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THE ARGUMENTS ADVANCED

A. WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. IS AMENABLE TO WRIT JURISDICTION? It is most deferentially put forth that IICL and its new management cannot be said to have become an absolute private entity as the activities carried on by the IICL & its new management is vital to public interest and has potential to affect the socio- economic development and growth of the nation. Respondent is, thus, performing a public duty and a positive obligation towards its employees and customers exists. Therefore, it is amenable to writ jurisdiction.1

1. THE RESPONDENT COMPANY IS VERY MUCH COVERED UNDER THE AMBIT OF STATE UNDER ARTICLE 12 OF THE CONSTITUTION OF INDISTAN. In the classical words of V.R. KRISHNA IYER, J2: The conclusion is impeccable that if the corporate body is but an instrumentality or agency of government, then Part III will trammel its operations. It is a case of quasi governmental beings, not of non State entities. We have no hesitation to hold that where the chemistry of the corporate body answers the test of State above outlined it comes within the definition in Article 12. In our constitutional scheme where the commanding heights belong to the public sector of the national economy, to grant absolution to government companies and their ilk from Part III may be perilous. The court cannot connive at a process which eventually makes fundamental rights as rare as roses in December, ice in June. Article 12 uses the
1

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 (1981) 2 S.C.R. 79; 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; State of Bihar v. Union of India & Anr.(1970) 2 S.C.R. 522; S.L. Agarwal v. General Manager, Hindustan Steels Ltd., (1970) 3 S.C.R. 363; Sabhajit Tewary v. Union of India & Ors. (1975) 3 S.C.R. 616 and S.C. Dhanoa v. Municipal Corporation Delhi & Ors. (1981) 3 S.C.C. 431
2

Som Prakash Rekhi v. Union of India AIR 1981 SC 212

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-MEMORANDUM for the PETITIONERexpression other authorities and its connotation has to be clarified. On this facet also, the Airport Authority case 3 supplies a solution. If a statutory corporation, body or other authority is an instrumentality or agency of the government, it would be an authority and therefore State within the meaning of that expression in Article 12.

1.1 It is most respectfully submitted that considering the present composition of share-holding, government of Indistan prima facie holds 31% shares in IICL4 and still remains the largest single stake holder5. Moreover, it would be appropriate to draw attention towards Para 4 of the factual matrix, according to which the Govt. of Indistan created a new State run corporate entity namely, Indistan International Communication Limited (IICL) in year 1981. Disinvestment government enters in to public private partnership where strategic decision making are left to private players and funding part is left to government this does not create monopoly of the private players as government monitors body to protect interest of the society and nation.6 In 1952, Pandit Jawaharlal Nehru, the first Prime Minister of India, at the time of inauguration of the first Public Sector Undertaking of our country, that is, Sindhri Fertiliser Unit, said, "Today I am not inaugurating a fertiliser factory. I am inaugurating a temple of India." 7 So it becomes manifest that IICL is under the complete control of Government of Indistan.8 Therefore, logically and consequently it follows that a writ petition would lie in cases where the services of the employees were terminated in breach of the rules governing the service conditions of the employees. To bolster up the argument the counsel has extracted Para 11, from the case of Ajay Hasia9, as follows: "The concept of instrumentality or agency of the Government is not limited to a
3

R.D. Shetty v. International Airport Authority of India & Ors. (1979) 3 SCR 1014 Refer factsheet, at para.8. Refer factsheet, at Para. 9. Disinvestment Bad or Good http://www.indiabix.com/group-discussion/is-disinvestment-really-that-good-for-

india-or-is-a-rethink-in-order/ (Visited on July,13 2013)

7

Corporate Social Responsibility available at http://www.forbes.com/sites/csr/2012/02/21/six-reasonscompanies-should-embrace-csr/ (Visited on July,13 2013)

8

Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju AIR 1990 A.P. 171
9

(1981)1 SCC 722

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-MEMORANDUM for the PETITIONER-

corporation created by a 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." 1.2 It is emphatically submitted that the new Management of IICL namely XYZ Corp. Limited has one of its motto to be the partner in economic development with a social commitment and share the responsibilities with values10. CSR is important because businesses are based on trust and foresight. To be successful in the long-term, companies need to think beyond whats affecting them today to whats going to happen tomorrow. This isnt just about addressing changes to technology or the needs of customers, but also taking into account alterations in social, environmental and governance issues.11 Therefore it is very unfortunate on the part of management to terminate the services of majority of the employees belonging to backward class of citizens and thereby in breach of its own welfare motto. 1.3 It is further the case of the petitioner that IICL & its new management having stepped into the shoes of erstwhile shareholder and is bound by the commitments and obligations, rights and liabilities, arising from the sale/purchase of shares. In addition, it is submitted that Government still has pervasive control over the IICL. The strategic partner i.e. XYZ ltd. have been bound by the Government agreement in relation to divestment of the stakes, and there is a further condition that if the strategic partner wish to sell its stakes in the IICL, it is not free for the strategic partner to sell off the same in the open market, but the shares can be sold off back to the Government only. It clearly, buttresses the fact that the Government consider the function/activity so sacrosanct and of such public importance that it does not wish to alter the nature of the functions of IICL. However, there is no such condition precedent in the agreement with the other telecommunication companies which are merely service providers. Thus, the counsel reiterates the submission that IICL would be covered by the term other authority within the scope and ambit of Article 12. . To give a wider dimension to Fundamental Rights, the judiciary has interpreted State in different contexts at different times.

10

Refer factsheet, at Para. 6.

11

Corporate Social Responsibility http://www.research.utoronto.ca/corporate-social-responsibility( Visited on July 13,2013)

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-MEMORANDUM for the PETITIONERThe Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression other authorities which perform governmental or sovereign functions. 12 In another case
13

few corporations 14 were

held to be State as performing very close to governmental or sovereign functions. The other authorities are entities with independent status distinct from the state but this fact alone does not militate against such entities or institutions being agencies or instrumentalities to come under the net of article 12 of the constitution. The concept of instrumentality or agencies of the government is not to be confined to entities crated under or which owes its origin to any particular statute or order but could really depend upon a combination of one or more relevant factors, depending upon the essentially and overwhelming nature of such factors, in identifying the real source of governing power, if need be, piercing that corporate wheel of the entity concerned.15

1.4 It is humbly submitted that for the purposes of the wider application of the fundamental rights State must be defined liberally thus an employee of a public corporation may challenge the violation of his fundamental rights by the corporation16.It is humbly submitted that the right to communication is a facet of freedom of speech and expression under Article 19(1) (a) of the Constitution of Indistan. The Government of Indistan is duty bound to provide uninterrupted Telecommunication Services to enable its citizen to effectively exercise the aforesaid right. This public duty was being provided through one of the departments i.e. Department of Telecommunication. The same function was subsequently performed by the IICL, a wholly owned government enterprises, till disinvestment. Even after disinvestment, IICL continues to perform the same functions by connecting its subscribers to their receivers in India as well as abroad. For the foregoing reason it can be safely concluded that the Respondent-company is not only performing the duties of the State, rather its activities are
12

University of Madras v. Santa Bai AIR 1954 Mad. 64 Sukhdev v. Bhagatram AIR 1975 SC 1331 LIC , ONGC AND IFC

13

14

15

Mysore Paper Mills Ltd v. Mysore Paper Mills Officers Association (2002) 2 SCC 167, 178(Para11);AIR 2002 SC 609, following Praga Tools Copn. v. C. A Immanuel (1969) 1 SCC 585; Andi Mukti S.S.M. V.S.S. J.M.S. Trust v. V. R. Rudani (1989) 2 SCC691; Tekraj Vasandi v. UOI (1988) 1 SCC 236; Ajay Hasia v. Khalid Mujeeb Sehravardi (1981) 1 SCC 722; Chander Mohan Khanna v. NCERT (1991) 4 SCC 578 and Steel Authority Of India Ltd v. National Union Water Fropnt Workers (2002) 7 SCC 1 AIR SC 3527.
16

V. N Shuklas ,Constitution of India (Eastern Book Company, Lucknow ) p.254

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-MEMORANDUM for the PETITIONER-

closely inter-twined with the duty of the State in discharging the constitutional obligation of providing uninterrupted telecommunications service to the people. 17 The Constitution of India has defined the word State for the purpose of Part III and Part IV .The object of Part III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of State.18

1.5 It is deferentially submitted that dismissing the writ petition erroneously at a preliminary stage can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated .The High Court in Indistan has failed to distinguish the expression other authority as defined in Article 12 of the Constitution of Indistan from that of any person or authority in Article 226 of the Constitution. In fact, the High Court totally ignored the fact that the definition of other authority would now have to be seen by taking into account the mixed economy of State and the private enterprises. The High Court, however, confined itself only to the issue as to whether IICL after disinvestment is State within Article 12 of the Constitution. To buttress this contention inspiration is drawn from the decision of this Court in the case of Air India Statutory Corporation v. United Labour Union & Ors. 19 In catena of cases Article 226 of the Constitution permits issuance of writs inter alia to any authority.20 Wherein the court enunciated in the following words: It is important to have a re-look at the definition of State/other authorities under Article 12 of the Constitution. In view of the present set up of mixed economy i.e. where the State is in partnership with semigovernment/private corporations that take over the Government companies in part or full. Article 226 confers wide powers on the High Court to issue writs in he nature of prerogative writs. Under Article 226, writs can be issued to "any person or authority". It can be issued

17

Ravneet Kaur v. Christian Medical College, Ludhiana 1997 (3) R.S.J. 676; K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and another (1997) 3 S.C. 455; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 S.C. 1607; Unni Krishnan, J.P and Ors. v. State of Andhra Pradesh and Ors. 1993 (2) R.S.J. 1
18

.State of West Bengal v. Subodh Gopal Bose 1954 AIR 92 (1997) 9 SCC 377

19

20

Rajasthan state electricity board v. Mohanlal, AIR 1967 SC 1857; Sukhdev Singh Bhagatram AIR 1975 SC1331; Ramanam Dayaram shetty v. International Airport Authority of India AIR 1979 SC 1628; Somprakash Rekhi v. Union of India AIR 1981 SC 212 and Ajay Hasia v. Khalid Mujeeb AIR 1981 SC 487 bring home the meaning of the term authority. C.f: B. I. Hansaria Tripathi Writ Jurisdiction under the Constitution (Second edn.)

-17-

-MEMORANDUM for the PETITIONERfor the enforcement of any of the fundamental rights and for any other purpose."21 Subba Rao, J. in Dwarkanath v. ITO 22 said that Article 226 "is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against who it can be exercised."

1.6 For the sake of argument learned counsels for respondent may pursue that notwithstanding the wide language of Article 226 of the Constitution of India, a writ can be issued only against the State or other authorities as contemplated under Article 12 of the Constitution. For repelling this assertion inspiration is drawn from Mrs. K. Naqvi v. State of Punjab and ors.23 Wherein the Full Bench concluded as under: It is, thus, clear that the old and the conservative view regarding the maintainability of writs against the State or its instrumentalities is giving way to "a liberal meaning." The power under Article 226 is no longer confined to the issue of writs against statutory authorities and instrumentalities of the State. It covers "any other person or body performing public duty." Medical Colleges are supplementing the effort of the State. These cannot survive or subsist without recognition and/or affiliation. The bodies which grant recognition are required to ensure that the institution complies with Article 14 of the Constitution. These decisions represent a quantum jump- from 'the tests' in Ajay Hasia v. Khalid Mujib 24 , to a liberal meaning to the term 'authority' in Article 226. It is submitted that in Ajay hasia v. Khalid mujeeb 25Bhagwati, J., speaking for a unanimous five judge bench, reiterated that the test for determining whether a corporation falls under the definition of the of state in Article was whether it was an instrumentality or agency of government. The enquiry must however be not how the juristic

21

Executive Committee of Vaish Degree College v. Lakshmi Narain (1976) 2 SCR 1006; Deepak Kumar Biswas v. Director of Public Instructions (1987) 2 SCC 252; Dwarkanath v. Income Tax Officer (1965)3 SCR 536
22

(1965) 3 SCR 536 (2004)ILR 2Punjab and Haryana11 AIR 1981 SC 487 (1981)1 SCC 722

23

24

25

-18-

-MEMORANDUM for the PETITIONER-

person was born but why was it brought into existence. It was therefore, immaterial whether the corporation was created as governmental body or not.26 Reliance is also placed upon a Constitutional Bench judgment of the Hon'ble Supreme Court in M/s. Zee Tele Films Ltd. v. Union of India27; wherein it was held that though the prerequisite for invoking the jurisdiction of the Hon'ble Supreme Court for enforcement of a fundamental right under Article 32 is that the violator of that right should be a State and if that pre-requisite is not fulfilled, then relief cannot be given under Article 32 of the Constitution of India but that does not mean that the violator of such right could go scout free merely because it or he is not a State. It was further held therein that under the Indian jurisprudence there is always a remedy for violation of a right of a citizen who can always seek remedy under ordinary course of law or by way of a writ petition under Article 226 of the Constitution of India which is much wider than Article 32 of the Constitution of India; as such relief can be claimed even against a non-statutory body which carries on activities akin to public duty or State functions. The tests to determine whether a body falls within the definition of "State" in Article 12 laid down in R.D. Shetty28 with the Constitution Bench imprimatur in Ajay Hasia
29

form the keystone of the subsequent jurisprudential

superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.30 2. ARGUENDO, SHOULD THE COURT HOLD THAT IICL IS A PRIVATE ENTITY, IT WOULD BE AMENABLE TO THE WRIT JURISDICTION OF THE HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDISTAN AS IT IS PERFORMING A PUBLIC FUNCTION/PUBLIC DUTY. In the golden words of Douglas, J31: When private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the state.
26

V. N Shuklas Constitution of India pg no.(Eastern Book Company,Lucknow ) AIR 2005 SC 2677 Supra at page 1 Supra at page 2 Federal Bank Ltd v. Sagar Thomas & Ors (2003) 10 SCC 733 Evans v. Newton 382 U.S. 296 (1966)

27

28

29

30

31

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-MEMORANDUM for the PETITIONER-

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. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram 32 where the learned Judge said that: Institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed by government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions 2.1 An inference can be drawn from bare reading of the compromis33 that IICL had a kind of monopoly in respect of International Long Distance Service i.e. ILDS and international telecommunication services. Therefore, it becomes blatant that even a private function which is performed for public benefit would be a public function. It is submitted that in the case of Delhi Science Forum v. Union of India34 that telecommunication has been internationally recognized as a public utility of strategic importance. Therefore, it cannot be said that IICL is not performing public functions. The New Economic Policy 1993 in Indistan mooted PublicPrivate Partnership (PPP) as a preferred business model for the economic reforms. The Planning Commission of India has defined the PPP as the PPP is a mode of implementing government programmes/schemes in partnership with the private sector 35 . In Lucknow Development Authority v. M.K. Gupta,36 the question was whether a Government Authority is amenable to the regulation of Consumer Protection Act. It was held in paragraph 5 and 6 that a Government or a semi- Government body or local authority is amenable to the Act as much as any other private body rendering similar service. This is a service to the society and they are amenable to public accountability for health and growth of society, housing construction or building activities, by private or statutory body rendering service within the meaning of

32

(1975)1 SCC 421 Refer factsheet, at Para.4 (1996) 2 SCC 405

33

34

35

Public Private Partnership available at http://www.rbi.org.in/scripts/BS_VIEWContent.aspx?ID=1912 (Visited on July 15, 2013)

36

(1984) 1 SCC 243

-20-

-MEMORANDUM for the PETITIONERSection 2(0) of the said Act. In Star Enterprises & Ors. v. C.I.D.C. of Maharashtra Ltd.,37 it was held that the State or its instrumentality entering into commercial field must act in consonance with the rule of law. In paragraph 10, it was held the judicial review of administrative action has become expansive and its scope is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded, State activity too is becoming fast pervasive as the State has descended into the commercial field and joint public sector undertaking has grown up. The State action must be justified by judicial review, by opening up of the public law interpretation. Accordingly, it was held that the action of company registered under the Companies Act was amenable to judicial review.

2.2 It is humbly submitted that the so called dichotomy between sovereign and non-sovereign functions of the State does not really exist. The question that whether a particular function of the State is a sovereign function depends on the nature of the power and manner of its exercise. Relying on the judgment of this Court in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal 38 , counsel submits that airwaves or frequencies are public property. Their use has to be controlled and regulated by a public authority in the interest of the public and to prevent the invasion of their rights. The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. Therefore, it cannot be said that IICL is not performing a public function.39. 2.3 It is further submitted that when the Government, in the exercise of its executive power by way of a policy decision, creates an entity or divests its functions, which may have a bearing upon the Fundamental Rights, in favour of a private body or transfer of public entity to a private body, in such an eventuality, the functions earlier discharged by the Government cannot be termed as purely a private function. Moreover realizing the necessity to promote, protect and enjoyment of human rights, including the right to freedom of expression, on the internet and in other technologies, the U.N. Human Rights Council has passed a resolution

37

(1990) 3 SCR 280 (1995) 2 SCC 161 Unni Krishnan J.P. & Ors. v. State of Andhra Pradesh & Ors. (1993) 4 SCC111

38

39

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-MEMORANDUM for the PETITIONER-

with regard to the same. Similarly, the right to telecommunication (Overseas), a service exclusively provided by Government of Indistan before disinvestment has the public law element and, therefore, nature of work performed by IICL continued to remain the same. It is also submitted that the functions performed by IICL would satisfy all the tests for determining whether a function is a public function provided under the Bill which was introduced in the parliament of Indistan to clarify the meaning of Public Function viz a viz Other Authorities by one of the regional political party of Indistan named as Social Justice Party.

2.5 It is submitted that it is necessary to look at the nature of the public functions which have been transferred. The meaning of public function would have to be determined by taking into account the effect of transfer of the public function from a public body to a private body. In view of the above, it can be safely concluded that IICL is performing a public function. 40 In LIC of India & Anr. v. Consumer Education & Research Centre & Ors41., it was held that: in the contractual field of State action, the State must act justly, fairly and reasonably in public interest commensurate with the constitutional conscience and socio- economic justice. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element, to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions. They must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons. It was further held that though the dispute may fall within the domain of contractual obligation, it would not relieve the State etc, of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of public character, invariably in every case, irrespective of there being any other right or obligation. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State etc, in any of its actions.42 In R.D. Shetty v. International Airport Authority of India & Ors. 43 This
40

Binny Ltd. v. Sadasivan; Federal Bank Ltd. v. Sagar Thomas and Ors.; Appeal of South Africa in Mittal Steel South Africa Limited (previously known as ISCOR Limited) v. Mondli Shadrack Hlatshwayo.
41

1995 SCC (5) 482

42

(1995) 5 SCC 482; G.B. Mahajan & Ors. v. Jalgaon Municipal Council & Ors. (1991) 3 SCC 91; Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers (1992) 1 SCC 534; Khwaja v. Secretary of State for the Home Department & Ors. (1983) 1 All. E.R. 765

-22-

-MEMORANDUM for the PETITIONER-

Court had held that due to expansion of welfare and social service functions, the State increasingly controls material and economical resources in the society involving large scale industrial and commercial activities with their executive functions affecting the lives of the people. It regulates and dispenses special services and provides large number of benefits. When the Government deals with the public, it cannot act arbitrarily. Where a corporation is an instrumentality or agency of the Government, it would be subject to the same constitutional or public law limitation as the Government. The limitations of the action by the Government must apply equally when such action are dealt with by Corporation having instrumentality element with public and they cannot act arbitrarily, Such a functioning cannot enter into relationship with any person it likes at its sweet will. Its action must be in conformity with some principle which meets the test of reason and relevance. Therefore, the distinction between a statutory corporation and the company incorporated under the Companies Act was obliterated.

2.6 The building and equipment is the body frame of the company. The affiliation given by Government of Indistan to the company is the soul which gives it life. It gains recognition and by virtue of which it becomes entitled to enjoy monopoly in ILDS. The company becomes a partner with the State in performing a public duty. Should it still be treated as an isolated island which is immune from the intervention of the courts in spite of the wide language of Articles 226 of the Constitution? The answer was provided in the case of Mrs. K. Naqvi v. State of punjab and ors. 44 Wherein their Lordships, on a consideration of the constitutional protection granted to the fundamental rights and remedies provided under Articles 32 and 226 of the Constitution of India for enforcement thereof against "any person or authority, including in appropriate cases, any government... ", held as under: The Constitution cannot be interpreted to mean that there are two sets of Rulers for the same game. It is only right that every Institution which is charged with a public duty follows the mandate of Article 14. It cannot act arbitrarily, treat equals unequally and make or follow Rules that are clearly violative of the prohibitions embodied in Part III of the Constitution. In fact, Article 29(2) contains a clear indication that even a private institution which is receiving aid, from the State cannot discriminate on grounds of religion, caste etc. Thus,
43

(1979) 3 SCR 1014 2004ILR 2 (Punjab and Haryana) 11

44

-23-

-MEMORANDUM for the PETITIONER-

there cannot be a dichotomy- a division of the institutions performing public duties into two strongly contrasted classes. The private institutions performing public duty supplement the State's effort. They are partners with the State. The private and Governmental institutions are the two sides of the same body. The right side cannot smile when the left side is pinched.

2.7 It is respectfully submitted that the powers of the High Court under Article 226 is much wider than the powers of this Court under Article 32 of the Constitution of India. To elucidate further reference is drawn from the Constitution Bench judgment of this Court in Zee Telefilms Ltd. v. Union of India45. In this case, the activities of Board of Cricket Control of India were held to be akin to public duties or State functions. On the basis of the above, he submitted that when a private body exercises public functions even if it is not a State, the aggrieved person would have a remedy by way of a writ petition under Article 226. Reliance is placed upon a judgment of this Court in Ramesh Ahluwalia v. State of Punjab & Ors.46 Reliance is further placed upon Shri R.D. Sharma vs St. John'S High School And Ors. 47 Wherein the court enunciated in the following words: In my opinion a writ of mandamus is maintainable against a private institute even though it does not get aid and its duty runs shoulder to shoulder with a duty which is performed by a public institution. To clarify this aspect of the case, if a dispute involved in a particular lies with regard to the admission or education or with regard to the pay of a member of the staff, in such a situation a writ under Article 226 is maintainable because imparting of education by a private institution is such a duty which is also being performed by the public institutions. In other words mere label of a private institution will not oust the jurisdiction of the High Court under Article 226 of the Constitution. Furthermore the court in Andi Mukta's case 48 enunciated in the following words: If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied." Also in the case of V.S. T. Industries Ltd., a question arose before the Hon'ble Supreme Court as to whether a
45

Supra at page 6 C.A.No.6634 of 2012 (2002) 4 SLR 227 Supra at page 17

46

47

48

-24-

-MEMORANDUM for the PETITIONER-

company which is engaged in the manufacture and sale of cigarettes involved any public function so as to make it amenable to writ Jurisdiction under Article 226 of the Constitution of India. The Supreme Court observed that 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 those performable by the State in its sovereign capacity. The Apex Court laid down the principles when an activity of a private body can be said to public function and subject matter of judicial review. In para 7 of the reports, the Hon'ble Supreme Court has held as follows:"In De Smith, Woolf and Jowell's Judicial Review of Administrative Action, it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public law when Its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing or possibly its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated commercial profit should be regarded, at least relating to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the Court, and the purpose and nature of their detention is a matter of public concern and interest. 2.8 In Sukhdev Singh and others v. Bhagatram Sardar Singh Reghuvanshi and another 49 , a Constitution Bench of this Court held that Regulations being framed under statutory provisions would have the force of law. The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when or authority, decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. & Anr. v. Rohtas Industries Staff Union & Ors.50 It was submitted before the Constitution Bench that an award under Section 10A of the Industrial Disputes Act, 1947 savours of a private arbitration and was not amenable to correction under Article 226 of the Constitution. The Court said as under: "The expansive and
49

(1975) 1 SCC 421 (1976) 2 SCC 82

50

-25-

-MEMORANDUM for the PETITIONERextraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to any person by the expressive reference to one thing to affirm the jurisdiction, another to authorize its free exercise like a bull in a china shop". This Court has spelt out wise extraordinary remedy and High Courts will not go beyond those monstrosities of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.51 It is submitted that a Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another v. N. Seetharama Raju52 said that what is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporation or not. Constitution in not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a
51

Engineering Mazdoor Sabha 1963 Supp.(1) SCR 625, 640 AIR 1990 AP 171

52

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-MEMORANDUM for the PETITIONER-

cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, the court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation.

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

EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?

1. THE TERMINATION OF EMPLOYEES WAS ARBITRARY AND OPPOSED TO RULES OF NATURAL JUSTICE. It is most respectfully submitted that the preamble to the Constitution proclaims that 'we the people of India' adopt, enact and give to ourselves the Constitution of India to secure to all its citizens justice, liberty and equality. There are a few Articles in Part IV of the Constitution of India like Articles 38, 39 and 47 which aim at securing equality of opportunity and social justice. Article 16(4) likewise enables the State from making any provision for the reservation of appointments or posts in favour of the backward classes under the State. The doctrine of equality is the fibre with which constitutional scheme is woven.

1.1 Termination was in violation of principles of natural justice. It is most humbly submitted that the impugned termination order has been passed on the basis of a presumed misconduct but neither any charge-sheet was issued nor any enquiry was held against the Petitioner; the impugned action is totally violative of the principles of natural justice53 and, therefore, the same is liable to be struck down and consequently the Petitioner is entitled to be reinstated into service.Moreover, the natural principle governing bias has
53

Workmen of Motipur Sugar Factory v. Motipur Sugar Factory Pvt Ltd.(1965) AIR 1803

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-MEMORANDUM for the PETITIONER-

been violated in the instant matter and hence the termination of employees stand vitiated. SubbaRao. J in Somashankara Sastry v. State of Andhra Pradesh 54 held that: principles governing the doctrine of bias are:a) No man shall be a judge in his own case; and b) Justice should not only be done, but manifestly and undoubtedly seen to be done. In the instant matter, there has been no inquiry prior to the termination of employees. Furthermore, the new management of IICL has not given any specific grounds on which such termination was based. Thus, there is a reasonable apprehension that the termination may not have been proper and fair thereby failing to pass the 2nd principle governing the doctrine of bias i.e. justice done is not evident in the instant matter. The

1.2 Termination was violative of Art. 14 It has been held by this Honble court in the case of W.B.S.E.B v. DeshBandhuGhosh55 that providing for dismissing an employee without assigning any reason or making any enquiry is arbitrary in nature and violative of Art.14. Therefore, IICL being the instrumentalities of the state must act in consonance with Art. 14 of the Constitution of Indistan. IT IS MOST RESPECTFULLY SUBMITTED THAT IRRATIONALITY OF THE DECISION IS ONE OF THE GROUNDS ON WHICH ADMINISTRATIVE DECISION CAN BE SET ASIDE. To borrow the words of Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Service56: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action are subject to control by judicial review. The first ground I would call 'illegality'; the second 'irrationality' and the third 'procedural impropriety'.... By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
54

AIR 1959 SC 1378 (1985)3SCC116(para4) (1984) 3 AER 935

55

56

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-MEMORANDUM for the PETITIONER-

Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system....This is a decision which was noticed with approval by the Supreme Court in Ranjit Thakur v. Union of India and Ors.57. After referring to it, and to the decision of the Supreme Court in Bhagat Ram v. State of Himachal Pradesh58, the learned Judges observed that: the point to note and emphasize is that all powers have legal limits. If an administrative action is arbitrary, in the sense of being 'unreasonable', it can be struck down in the course of judicial review. Article 14 of the Constitution strikes at arbitrariness at and ensures fairness.

2.1 Termination was unreasonable It is further submitted Lord Greene, M. R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation59, observed that Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L. J., I think it was, gave the example of the red-haired teachers, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head. Speaking about the test of 'irrationality' Taylor, J. said in R. v. Secretary of State 60for the Home Department, ex parte Ruddock and Ors.61 that What the court must do is to look at all the evidence of fact and opinion and decide whether it shows that no reasonable Secretary of State could have concluded the criteria applied. In Supreme Court Employees' Welfare

57

AIR 1987 SC 2386 AIR 1983 SC 454 1947 (2) AER 680 [1989] 1 QB 26 1987 (2) AER 518

58

59

60

61

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-MEMORANDUM for the PETITIONERAssociation v. Union of India and Anr.62 the principle stated by Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation63 was recited with approval and it was said 64 that: An act is ultra vires...because the authority has acted...with gross unreasonableness... Further reliance is placed upon the judgement of this Honble Court in the case of Saraswati Industries Syndicate Ltd. v. Union of India65 wherein it was held that: Reasonableness, for purposes of judging whether there was an 'excess of power' or an 'arbitrary' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. Therefore these decisions unmistakably lay down that where an administrative decision is found to be such which could not be taken by any reasonable body of persons on the facts before them, it would suffer from the vice of 'irrationality' and would be liable to be set aside on that account in the course of judicial review. It would amount to a selfmisdirection and be vitiated on that count. In light of the above, the petitioner submits that the termination of the employees suffers from the vice of irrationality and for such reason alone, it must stand vitiated.

3. 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. It is emphatically submitted that in Regina (Daly) v. Secretary of State for the Home Department66, Lord Stein observed that in the law context is everything. Constitutional law is a part of the Indian law and being suprema lax its meaning is subject to textual consideration. The operation of reservation policy ought to be in a manner consistent with the objective of promoting fraternity among all citizens, assuring, and the dignity of the
62

(1989) 4 SCC 187 (1947) 2 AER 680 paragraph 106 AIR 1975 SC 460

63

64

65

66

Regina (Daly) v. Secretary of State for the Home Department (2001) 2 AC 532 at 548

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-MEMORANDUM for the PETITIONER-

individual and unity of the Nation. The aim of the Constitution is to equip each member of the weaker sections with the ability to compete with other citizens with dignity on a level playing field. The pitiable condition of backward classes is recognized by the Constitution as a national problem. Therefore, the responsibility of improving them has been entrusted to the National Commission and the Parliament.

3.1 Principles of Legitimate Expectation shall be applicable It is respectfully submitted that the long period of service rendered and the consequences and the benefits available to the concerned employee who had rendered such service without any blemish then the principles of legitimate expectation are squarely applicable. To substantiate the plea reliance is placed on Director, Institute of Management Development, U.P. vs. PushpaSrivastava (Smt.)67, Ashwani Kumar &Ors. vs. State of Bihar & Ors.68 , Daily Rated Casual Labour Employed under P&T Department through Tar MazdoorManch vs. Union of India and Ors.69,NarenderChadha and Ors. vs. Union of India and Ors.70, State of Haryana and Anr. vs. Ram Diya71, State of U.P. and Ors. vs. Dr. Deep NarainTripathi and Ors.72

3.2 Application of the principles of legitimate expectation in Indistan it is humbly submitted that reference be drawn to the case of Navjyoti Co-op. Group Housing Society vs. Union of India73 wherein it was observed that legitimate expectation was not the same thing as anticipation. It was not different from a mere wish to desire or hope; nor was it a claim or demand based on a right. A mere disappointment would not give rise to legal consequence. The position was indicated as follows: "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."
67

1992 [4] SCC 33 JT 1997 [1] SC 243 1988 [1] SCC 122 1986 [2] SCC 157 1990 [2] SCR 431 1996 [8] SCC 454 1992 (4) SCC 477

68

69

70

71

72

73

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It is most humbly submitted that in the instant case, there was a reasonable expectation on behalf of the employees that once they have served for such long period of time under the state then their services shall not be terminated abruptly as such without giving any reason or notice to the effect whatsoever. After quoting Wade/Administrative Law 74 , reference was also made to the judgment of the Australian High Court in Attorney General for New South Wales vs. Quin75 in which the principle itself, according to Wade, did not find acceptance. Dawson, J. held that the contention of the respondent exceeded the bound of procedural fairness and intruded upon the freedom of the executive. In Hindustan Development Corporation's case76R. vs. Secretary of State for the Home Department ex parte Ruddock77 and Findlay vs. Secretary of State for the Home Department78 and Breen vs. Amalgamated Engineering Union,
79

were considered. It

was accepted that the principle of legitimate

expectation gave the applicant sufficient locus standi to seek judicial review and that the doctrine was confined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken. It did not involve any crystallized right. The protection of such legitimate expectation did not require the fulfilment of the expectation where an overriding public interest required otherwise. However, the burden lay on the decision maker to show such an overriding public interest. A case of substantive legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The Court could interfere only if the decision taken by the authority was arbitrary, unreasonable or not taken in public interest. If it is established that a legitimate expectation has been improperly denied on the application of the above principles, the question of giving opportunity can arise if failure of justice is shown. The Court must follow an objective method by which the decision- making authority is given the full range of choice which the legislature is presumed to have intended. If the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness. An example was given that if a renewal was given to an
74

(6th Ed.) (p.424, 522) (1990) 64 Aust. LJR 327 1993 (3) SCC 499 1987 2 All E.R. 518 (1984) 3 All E.R. 801 (1971) 1 All. E.R. 1148

75

76

77

78

79

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existing licence holder, a new applicant cannot claim an opportunity based on natural justice. On facts, it was held that legitimate expectation was denied on the basis of reasonable considerations. The next case in which the question was considered is Madras city Wine Merchants' Association vs. State of Tamil Nadu,80 In that case the rules relating to renewal of liquor licences were statutorily altered by repealing existing rules. It was held that the repeal being the result of a change in the policy by legislation, the principle of non-arbitrariness was not invocable. In M.P. Oil Extraction vs. State of M.P.81 the question was again considered. In that case, it was held that the State's policy to extend renewal of an agreement to selected industries which came to be located in Madhya Pradesh on invitation of State, as against other local industries was not arbitrary and the said selected industries had a legitimate expectation of renewal under renewal claims which should be given effect to according to past practice unless there was any special reasons not to adhere to the practice. It was clearly held that the principle of substantive legitimate expectation was accepted by the Court earlier. Reference was made to Food Corporation's case82,Navjyoti Co-op. Group Housing Society's case 83and to Hindustan Development Corporation's case84 . Lastly we come to the threejudge judgment in National Building Construction Corporation vs. S. Raghunathan& Others.85.. It was observed that the doctrine of 'legitimate expectation' had both substantive and procedural aspects. This Court laid down a clear principle that claims on legitimate expectation required reliance on representation and resultant detriment in the same way as claims based on promissory estoppel. The principle was developed in the context of 'reasonableness' and in the context of 'natural justice'. Reference was made to IRC exp. Preston's case86; Food Corporation's case87; Hindustan Development Corporation's case88; the Australian Case in Quin89; M.P. Oil Extraction's case90, CCSU's case91 and Navjyoti's case92.
80 81

1994 (5) SCC 509 1997 (7) SCC 592 82 1993 (1) SCC 71 83 Supra at Page 32 84 Supra at Page 33 85 1998 (7) SCC 66 86 1985 AC 835 87 ibid 88 ibid 89 (1990) 64 Aust. IJR 327 90 ibid 91 (1984) 3 AER 935 92 ibid

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-MEMORANDUM for the PETITIONER-

In view of the above, the petitioner humbly submits that in the instant case, there arises a legitimate expectation of the members of the All Indistan Backward Class (affected by disinvestment) Employee Association against protection from discrimination and arbitrary exercise of power by the instrumentalities of the state.

THE PRAYER

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-MEMORANDUM for the PETITIONER-

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY GRACIOUSLY BE PLEASED TO: A. ALLOW THE WRIT PETITIONS; B. DECLARE THAT IICL IS AMENABLE TO WRIT JURISDICTION; C. HOLD THAT RECOMMENDATIONS OF SOCIAL JUSTICE AND

EMPOWERMENT DEPARTMENT BE SPECIFICALLY ENFORCED; D. HOLD THAT TERMINATION OF SERVICES OF EMPLOYEE WAS ARBITRARY AND OPPOSED TO PRINCIPLES OF NATURAL JUSTICE.

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 PETITIONER

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