SUDHIR AGARWAL, J. - (1.) IN these writ petitions the questions of law and fact involved are common and, therefore, as requested by learned Counsel for the parties have been heard together and are being decided by this common judgment. 35 petitioners in Writ Petition No. 21772 of 2006 have filed this writ petition seeking a writ of certiorari quashing the orders dated 21.2.2006 (Annexure 11 to the writ petition) whereby the petitioners have been terminated by respondent No. 8. Further a writ of certiorari has been sought against the condition mentioned at item No. 5.1.2. of the agreement dated 3.11.2005 contained in Annexure 7 to the writ petition. It provides that marketing personnel of respondent No. 8 shall not be absorbed. A writ of mandamus has also been sought directing respondents No. 1 to 5 to allow the petitioner to continue as Marketing Personnel and to pay their salary with effect from the date, persons junior to the petitioners, mentioned in Table I in para 25 of the writ petition have been retained in service. In Writ Petition No. 56026 of 2006 there are four petitioners. Reliefs sought are similar as referred above.
(2.) THE facts in brief giving rise to these writ petitions are narrated as under: Oswal Chemicals and Fertilizers Limited (hereinafter referred to as 'OCFL') having its registered office at Kasturba Gandhi Marg, New Delhi is a Company registered under the Companies Act, 1956 and was engaged in the manufacture of chemicals and fertilizers. The petitioners were appointed as Marketing Officers of the Company. There is another Company named M/s. Shyam Basic Infrastructures Products Pvt. Ltd. (hereinafter referred to as 'SBIPPL'). An agreement was executed between OCFL and SBIPPL on 3.11.2005 wherein the entire assets of OCFL agreed to be sold to SBIPPL for a consideration of Rs. 1100 Crores. The purchasing Company vide Clause 5.1.2. of the agreement also agreed to take over all the employees of OCFL on terms not less favourable than those they currently enjoyed except Marketing Personnel, Thereafter it appears mat another Company Kribhco Shyam Fertilizers Limited (hereinafter referred to as 'KSFL') was incorporated under the Companies Act, 1956 vide registration certificate of incorporation dated 8.12.2005 issued by the Registrar of Companies and N.C.T. of Delhi and Haryana. The said new Company was incorporated being a joint venture of SBIPPL and M/s. Krishak Bharti Co-operative Limited (hereinafter referred to as 'KRIBHCO') as per the object stated in Memo of Association, it was incorporated to acquire the assets of Shahjahanpur unit of OCFL. An agreement dated 23.12.2005 was executed between SBIPPL and KSFL whereby Shahjahanpur plant was sold to KSFL. All the employees of respondent No. 8 who were taken by SBIPPL except the Marketing Personnel, ultimately became the employees of KSFL and are in service. However, the petitioners who were the employees in Marketing Section, their services have been dispensed with by their original employer OCFL," respondent No. 8 be means of the impugned orders of termination where against these writ petitions have been filed. Dr. L.P. Misra, Senior Advocate assisted by Sri Sharad Pandey and Sri Ajay Kumar Singh appeared for the petitioners in these cases. Learned Counsel for the petitioners vehemently contended that KRIBHCO is an instrumentality of the Government and SBIPPL worked as an agent of KRIBHCO for purchase of- OCFL as is evident from agreement dated 3.11.2005 where in the definition Clause 1.1.6, it is mentioned that 'party' or 'parties' means as the -context may require Shyam or KRIBHCO or both. It is, therefore, submitted that in effect transfer of the assets of the Company from OCFL to SBIPPL and thereafter to KSFL is nothing but for all practical purposes is a transfer under the direct control of KRIBHCO which is an instrumentality of the State. Being a State under Article 12 of the Constitution it is incumbent upon it not to Act arbitrarily and cause discrimination. However, acting illegally, in the agreement dated 3.11.2005, it provided in Clause 5.1.2 for transfer of all other employees of OCFL except Marketing Personnel which is arbitrary and discriminatory and even otherwise unconscion­able. It is further contended that Articles 41, 42 and 43 of the Constitution of India cast a duty upon the State and its instrumentality to eradicate poverty and provide employment and ensure improvement of working condition of the citizens of the country. Hence, KRIBHCO acting in a fraudulent manner by indirectly purchasing respondent No. 1 has rendered the petitioners unemployed which is illegal and unconstitutional and violative of Article 21 of the Constitution.
(3.) RESPONDENT No. 4 has filed a counter-affidavit stating that KRIBHCO was initially registered under the Delhi Cooperative Societies Act, 1972 and thereafter registered as Multi-State Cooperative Society under Multi-State Cooperative Societies Act, 1984 and now governed by the provisions of Multi-State Cooperative Societies Act, 2002 (hereinafter referred to as "2002 Act"). The object of KRIBHCO is to promote the economic interest of its members by undertaking manufacture of chemical fertilizers and other allied products which are conducive and incidental thereto. The membership of KRIBHCO is open to various cooperative Societies which are primarily engaged in development of agriculture. Since the Society is now governed by the provisions of Multi-State Cooperative Societies Act, 2002, the Bye-Laws have been amended and the presently applicable to KRIBHCO are the amended certified Bye-Laws dated 28.12.2004. There is no pervasive control of Government over KRIBHCO and neither it carries out the essential public duty and function or duties closely related to governmental functions nor even-otherwise, it is wholly owned and controlled by the, Government of India or State and therefore, it is not a 'State' under Article 12 of the Constitution of India. It has also denied that SBIPPL acted as an agent of KRIBHCO. It is said that KRIBHCO being a separate entity, as a joint venture, floated the Company namely, KSFL wherein KRIBHCO and SBIPPL both have their share and control in the manner provided in the Articles of Association and the said joint venture has resulted in birth of a separate independent entity 'KSFL'. The said KSFL has entered into an agreement on 23.12.2005 with SBIPPL in respect to Shahjahanpur unit of the Company, and it is totally a private and separate arrangement.;