- (1.) D. K. Seth, J. The petitioner is an employee of Mercury "travels (India) Limited which is a registered company under the Companies Act. In paragraph 2 of the writ petition it has been contended that since the said company is a tour operator and agents for all the principal Airlines as such it is a State within the meaning of Article 12 of the Constitution of India. Affiliation as tour operator and agents for Airlines does not confer any characteristic on the company to the ex tent of its being instrumentality and agen cy of the State. Admittedly no ingredients as specified in the decision in the case of Raman Daya Ram Shetty v. The Interna tional Airport Authority of India and others, AIR 1979 SC1628 has been shown to have been satisfied from the pleadings made out in the writ petition in order to bring the respondent No. 2 within the scope and ambit of an authority within the meaning of Article 12 of the Constitution.
(2.) MR. VN. Agarwal, learned Counsel for the petitioner had contended that the order contained in Annexure-7 by which the services of the petitioner were dis pensed with on the ground of absence in Bangalore after holding an enquiry in-ab-sentia could not have been passed since an industrial dispute is pending before the Tribunal for the last two years with regard to the issue as to whether the transfer of the petitioner to Bangalore was legal and valid. According to him such an order could not have been passed in view of Section 6-E of the U. P. Industrial Dispute Act. Therefore, the order having been passed in violation of statutory provisions viz Section 6-E of the Industrial Dispute Act, the said order appears to have been passed in discharge or statutory obligation as provided in Section 6-E of the said Act. On these grounds MR. Agarwal contends that this writ petition is maintainable. I have heard Shri VN. Agarwal, learned Counsel for the petitioners and Shri V. K. Rai, learned brief holder of respondent No. 1 at length. Section 6-E of the U. P. Industrial Dispute Act, 1947 provides that during the pendency of any proceeding either before the conciliation officer or before Labour Court or Tribunal in respect of any in dustrial dispute no employer shall punish by dismissal or otherwise a workman con nected with such dispute except with the permission from the labour Court. In case such an Order is passed in contravention of Section 6-E, the workman has a remedy under Section 6-F to make a complaint in writing in the prescribed manner to the labour Court or tribunal as the case may be and on receipt of which the labour Court or Tribunal shall adjudicate the complaint as if it were a dispute referred to or pend ing before it. U. P. Industrial Disputes Act provides the machinery for settlement of dispute between the employer and the workmen. It prescribes certain procedure as well as creates rights and obligations on the part of the employer and the workmen and vice versa. By reason of the said Act no statutory obligation is conferred on the employer or the workmen as the case may be. On the other hand any dispute between them can be settled through the machinery provided therein. Therefore, in dismiss ing, the petitioner in view of Section 6-E it cannot be said that the respondent had discharged its statutory obligation. It would be stretching interpretation to an unimaginable extent to touch the horizon of the interpretation of Article 12 for determining the characteristic of instrumentality and agency of the state in a person of a body of person or legal entity. I do not find any substance in the submis sion of Mr. Agarwal to that extent.
(3.) IN the case of U. P State Co-opera tive Land Development Bank Ltd. v. Chandra Bhan Dubey, 1999 (1) UPLBEC 296, it is held that writ lies even against a private individual and the right that is infr inged may be under Part III, of the Con stitution or any other right which the law validly made might confer upon him. But then the power of the High Court under Article 226 of the Constitution have laid down guideline through self-imposed limitations subject to which such jurisdic tion is to be exercised by the High Court. But such, guidelines are not mandatory in all circumstances. At the same time the High Court does not act like a proverbial bull in a China shop in exercise of its juris diction under Article 226. In the said judgment, a distinction has also been made between private law right and public law right. In the case of Sri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju, AIR 1990 A. P. 171, a Full Bench of the Andhra Pradesh High Court has held that "even if a Society cannot be characterized as a State within the meaning of Article 12, even then a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the Society. In such a case it is unnecessary to go into the ques tion whether the society is being treated as a 'person' or an 'authority', within the meaning of Article 226 of the Constitu tion. What is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Mandamus, ceniorari and prohibi tion are public law remedies. They are not available to enforce private law rights. Every act of a society which may be a 'state' within the meaning of Article 12, does not necessarily belong to public law field. A Society, which is a 'state' may have its private law rights just like a Govern ment. A contractual obligation, which is not statutory, cannot be enforced byway of a writ petition under Article 226 of the Constitution. ";