- (1.) R. A. Sharma, J. Petitioners, who claim to be employees of a sugar factory known as Venus Sugar Limited (hereinafter referred to as the company), have filed this writ petition challenging the orders of the com pany demanding security of Rs. 20,000 (Rs. Twenty thousand) from each petitioner for appointment as Seasonal Weighment Clerk/centre Incharge. Their case is that as they were employed by the company in earlier season also, they are entitled to re-employment in the current session automatically without depositing any security, in view of the Standing Orders of the company certified under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the Act ). Their grievance, therefore, is that demand of the security is in violation of the certified Standing Orders of the company. I have heard learned counsel for both the parties.
(2.) THIS writ petition is not maintainable. The company is a private trading organisation and it is neither a "state" within the meaning of Article 12 of the Constitution nor is it a statutory authority. That apart, company is also not discharging any statutory function or public duty. Learned counsel for the petitioners, however, contends that as the Standing Orders have statutory force and the impugned orders have been passed in violation thereof, the writ petition is maintainable. In its support learned counsel has placed reliance on the following four cases : (1) Smt. Rajni Sharma v. Union of India, 1995 (3) UPLBEC 1664 : 1995 (1) LBESR 164 (All) ; (2) Aley Ahmad v. District Inspector of Schools, AIR 1977 All 539 ; (3) Executive Committee, Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888 ; and (4) D. K. Yadav v. M/s. J. M. A. Industries Ltd. , 1993 (3) JT 617. Supreme Court in The Rajasthan State Road Transport Corporation v. Krishna Kant etc. , AIR 1995 SC 1715, has held that the certified Standing Orders are not delegated/subordinate legislation and although they are binding on the employer and the employees, they have no statutory force. Relevant extract from the said judgment is reproduced below : "the certified Standing Orders are not in the nature of delegated/ subordinate legislation. It is true that the Act makes it obliga tory upon the employer (of an industrial establishment to which the Act applies or is made applicable) to submit draft Standing Orders providing for the several matters prescribed in the Schedule to the Act and it also provides the procedure-inter alia, the certifying officer has to examine their fairness and reasonableness-for certification thereof. Yet it must be noted that these are conditions of service framed by the employer- the employer may be a private corporation, a firm or an indivi dual and not necessarily a statutory Corporation-which are approved/certified by the prescribed statutory authority, after hearing the concerned workmen. The Act does not say that on such certification, the Standing Orders acquire statutory effect or become part of the statute. It can certainly not be suggested that by virtue of certification, they get metamorphosed into delegated/subordinate legislation. Though these Standing Orders are undoubtedly binding upon both the employer and the employees and constitute the conditions of service of the emplo yees, it appears difficult to say, on principle, that they have statutory force. " ****** "indeed if it is held that certified Standing Orders constitute statu tory provisions or have statutory force, a writ petition would also lie for their enforcement just as in the case of violation of the Rules made under the proviso to Article 309 of the Consti tution. Neither a suit would be necessary nor a reference under Industrial Disputes Act. We do not think the certified Standing Orders can be elevated to that status. It is one thing to say that they are statutorily imposed conditions of service and an altogether different thing to say that they constitute statutory provisions themselves. " Supreme Court has further laid down that where dispute involves recogni tion, observance or enforcement of rights and obligations created by the Industrial Disputes Act or its sister enactment, like Industrial Employment (Standing Orders) Act, 1946, the only remedy to the person aggrieved is to approach the forum created by those Acts. Relevant extract of paragraph 32 of the said judgment is reproduced below : "32. (1) Where the dispute arises from general law of contract i. e. where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable even though such a dispute may also constitute an 'industrial dispute' within the meaning of Section 2 (k) of Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. " A Division Bench of this Court in Sushil Kumar Agarwal v. M/s. Totanore Components Ltd. , Special Appeal No. 669 of 1995, decided on October 3, 1995, [since reported in 1996 (i) LBESR 168 (All)] has laid down that the writ petitions filed by the employees of the private trading com pany/organisation against the order passed by their employer and/or for enforcing the conditions of their service, are not maintainable, because the employer is neither 'state' within the meaning of Article 12 of the Consti tution, nor does he perform any statutory/public duty, in the matter of employment of his employees.
(3.) CASES relied upon by the learned counsel for the petitioners are of no help to him. In the first case Smt. Rajni Sharma v. Union of India, 1995 (3) UPLBEC 1664 : 1995 (1) LBESR 164 (All) it was held that the Army School run by Army Welfare Education Society is a 'state' within the meaning of Article 12 of the Constitution, because administrative and financial control of the Society vest in the Government and its official. It was accordingly held that writ petition would lie against an order passed by the Society against any of its employees. In the second case, Aley Ahmad v. District Inspector of Schools, AIR 1977 All 539 (FB) this Court laid down that writ petition would lie even against the order of a private, individual if he passed an order in exercise of statutory powers. In the instant case the company is neither a 'state' within the meaning of Article 12 of the Constitution nor did it pass the impugned order in exercise of statutory power. Therefore, the law laid down in the above two cases cannot be applied to the instaut case. In Executive Committee, Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888 (supra) the question was whether the Committee of Management of the Degree College registered under the Co- operative Societies Act, and affiliated to a University, is a statutory body and further whether contract of personal service can be enforced through a Court. Supreme Court negatived both the contentions. It held that the Executive Committee of a Degree College is not statutory body. As regards the enforcement of the contract of service it was held that contract of personal service cannot ordinarily be specifically enforced except in the following three cases : (i) Where a Government servant has been removed in violation of Article 311 of the Constitution ; (ii) Where a workman has been dismissed in service under Industrial Law ; and (iii) Where a statutory authority has acted in breach of mandatory provisions of the statutes. Petitioners' case does not fall in any of the three exceptions. The last case of D. K. Yadav v. M/s. J. M. A Industries Ltd. , 1993 (3) JT 517 also does not enhance the case of the petitioners. In this case Supreme Court held that right of life covered under Article 21 of the Constitution include right to livelihood and as the order of termination of service of workman affect his livelihood and career his service should not be terminated without giving him reasonable opportunity of being heard, it was, therefore, held that principle of natural justice are to be read into the Standing Orders governing conditions of service of the workman. Such a controversy is not involved in the instant case. This writ petition is accordingly dismissed as not maintainable. Petition dismissed. .;