- (1.) THESE appeals have been filed against the order passed by the learned Single Judge in Writ Petition Nos. 5517 and 5518 of 1998, dated 4-3-1998 confirming the ex pane stay order dated 24-2-1998 staying the operation of the order of transfer of respondent 2-Deputy Manager (TTC) from the Technical Training Centre to its Regional Office, Calcutta under Office Memorandum No. FPA TRF 97 384, dated 27-11-1997 issued by the appellant (Annexure-EE to the writ petitions) and rejecting the application filed by the appellant-Company for vacating the stay order dated 24-2-1998.
(2.) THE impugned order passed by the learned Single Judge has been challenged by the management of the appellant-Company on two grounds which are (1) the writ petitions filed by the respondents in the writ appeals are not maintainable, as the appellant-Company is not a "state" or other authority within the sweep of the expression used in article 12 of the Constitution of India and (2) the order of transfer passed by the appellant is in accordance with the terms and conditions of contract of service as well as Officers' Service Rules and it is purely on account of exigencies of work and in the interest of business of the appellant-Company and the said order of transfer passed is not vitiated by any mala fides and the same cannot be challenged by the respondents in the writ proceedings. But it is contended by the respondents in the writ petitions that Mysore Paper Mills which is a Company incorporated under the Companies Act, 1956 and which is a Government Company, as defined in Section 617 of the said Act falls within the meaning of the "state", as defined in Article 12 of the Constitution of India and the said company being the "state" within the meaning of Article 12 of the constitution of India is bound to act fairly and reasonably and, if it does not do so, its action can be struck down under Article 14, as being arbitrary. It is further argued by the respondents that in the present case the transfer order passed by the management of the appellant-Company is mala fide and illegal and it amounts to resorting to unfair labour practice and act of victimisation. We have heard the elaborate arguments of the learned Senior Counsel Sri Udayaholla appearing for the appellant and Sri K. Subba Rao, learned Counsel appearing for the respondents on both the above grounds urged in the present appeal. After the said arguments were heard, the question: whether the appellant-Company can be considered as "state" within the meaning of the expression used in Article 12 of the Constitution of India has been referred to Full Bench by an order of Division Bench dated 10-7-1998, since it is found that in the earlier unreported decisions of this Court rendered by some of the Division Benches vide decisions in Writ Petition nos. 1995 of 1983, W. A. No. 1445 of 1984, W. A. Nos. 87 and 88 of 1992, w. P. No. 27375 of 1992, W. P. No. 6257 of 1987, W. P. No. 8746 of 1991, w. P. No. 16861 of 1989, W. P. No. 16504 of 1995, W. P. Nos. 16940 and 16941 of 1990, it was held that the appellant-Company was not a "state" and since it is felt that the said decisions need reconsideration and the question is to be decided afresh on the basis of the principles laid down by the Supreme Court in various decisions in Rohtas Industries Limited and Another v Rohtas Industries Staff Union and Others, Ajay Hasia v khalid Mujib Sehravardi and Others and Sheela Barse v Secretary, children Aid Society and Others, which are relied upon by the learned counsel appearing for both the sides. After the Full Bench was constituted, further arguments of the learned Counsels appearing for both sides have been heard.
(3.) THE points which arise for consideration of the Full Bench are: (1) Whether the Mysore Paper Mills which is a Company incorporated under the Companies Act, 1956 and which is a government Company, as defined in Section 617 of the Companies act falls within the meaning of the word "state" as defined in article 12 of the Constitution of India? (2) Whether the action taken by the appellant-Company transferring the 2nd respondent to Calcutta under the memo bearing No. FPA TRF 97 384, dated 27-11-1997 (Annexure-EE) is vitiated by mala fides and whether it is arbitrary and illegal?;