Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of order : 12 October, 2023
+ W.P.(C) 523/2019
YASHPAL SHARMA ..... Petitioner
Through: Mr.R.S. Garia, Mr.Shashank Singh
and Mr.Madan Chandra, Advocates
alongwith petitioner
versus
TATA POWER DELHI DISTRIBUTION LIMITED & ORS
..... Respondents
Through: Mr.Karan Bharihoke, Advocate for
R-1
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Article 226 of the Constitution of India
has been filed on behalf of petitioner seeking the following reliefs:-
"(A) Quashing the enquiry report dated 5.12.2013
communicated vide letter dated12.12.2013 wherein the
Petitioner was held guilty of the charges.
(B) quashing order imposing penalty dated 22.06.2017.
(C) quashing order dated 31.08.2018 rejecting the appeal filed
by the Petitioner;
(D) direct grant of all the benefits arising out of agreement
dated 01.04.2011, and higher education reward withheld on the
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:18.10.2023
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W.P.(C) 523/2019 Page 1 of 6
pretext of the impugned disciplinary proceedings and orders
passed therein in, which have been challenged by way of the
present Writ Petition, along with all consequential benefits.
(E) Pass any other order as this Hon'ble court may be deemed
fit in the fact and circumstances of the case."
2. By way of the instant petition, the petitioner seeks quashing of the
th
enquiry report dated 5 December 2013, wherein, the petitioner was held
nd
guilty of the charges. He also seeks quashing of the order dated 22 June
2017, vide which a penalty has been imposed upon the petitioner. The
st
petitioner has further prayed for quashing of the order dated 31 August
20188, as per which the petitioner‟s appeal has been rejected. Along with the
said prayers, the petitioner further seeks grant of all the benefits arising out
st
of agreement dated 1 April 2011.
3. Learned counsel appearing on behalf of the respondent submitted
during the course of the arguments that the present petition may be
dismissed on the grounds of non-maintainability since the respondent
company has been disinvested and 51% share of the same lies in the hands
of a private organization i.e. the respondent company.
4. Per contra , learned counsel appearing on behalf of the petitioner
vehemently opposed the arguments advanced by the respondent and
submitted that the present petition is maintainable since the respondent
company falls within the ambit of Article 12 of the Constitution of India and
that 49% share of the respondent company is controlled by the Government.
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By:DAMINI YADAV
Signing Date:18.10.2023
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W.P.(C) 523/2019 Page 2 of 6
5. Heard the learned counsel appearing on behalf of the parties and
perused the record.
6. Pursuant to the unbundling of the erstwhile Delhi Vidyut Board,
st
w.e.f., 1 July 2002, the respondent No. 1, a company registered under the
provisions of the Companies Act, 1956, and having majority share of 51%,
took over the distribution of electricity in north and north-west Delhi.
Further, it is registered with the Registrar of Companies as a Non-
government company.
7. This Court is of the view that the respondent, as an electricity
distribution Company may be discharging a public duty but the same is with
respect to its consumers and can never be said to be vis-à-vis the petitioner.
Since the respondent is a private body, the present writ petition is not
maintainable in light of the judgment passed by this Court in Saiyam Mishra
v. AIR India Ltd., 2023 SCC OnLine Del 4904 as well as the judgment
passed by the Hon'ble Division Bench of the Bombay High Court in the case
of R.S. Madireddy & Anr. V. Union of India, 2022 SCC OnLine Bom
2657. The relevant paragraph of Saiyam Mishra (Supra) , has been
reproduced as under:
“ 29. Under Article 226 of the Constitution of India a writ can
be issued “to any person or authority” and “for enforcement of
rights conferred by Part-III and for any other purposes”. The
scope of Article 226 of the Constitution of India, though
unfettered is subject to the restraint that a writ cannot be issued
against any private entity or for the purpose of settling private
disputes. Therefore, the scope of invocation of Article 226 of
the Constitution of India against a private body is limited to
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By:DAMINI YADAV
Signing Date:18.10.2023
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such private body essentially performing a public duty or
performing functions akin to functions of the State as per
Article 12 of the Constitution of India. A private body doing
commercial activities is not amenable to writ jurisdiction
except a writ of Habeas Corpus. ”
The relevant paragraph of R.S. Madireddy (Supra) has been reiterated
below:
“ 69. We are afraid, the contention that the petitioners were in
„public employment‟ earlier and that it should weigh in our
minds for the purpose of grant of relief, as claimed originally,
or moulding of relief because of the changed circumstances, is
unacceptable for the reasons discussed above. By way of
reiteration, we say that whether or not AIL was discharging
public functions or the petitioners were in public employment
need not be examined in these proceedings because, as the
matter presently stands, no writ can be issued by us to AIL. In
the circumstances, all the decisions cited by Mr. Singhvi laying
down the law that a body discharging public functions would be
amenable to the writ jurisdiction have no materiality for
deciding the question at hand. ”
8. Taking into consideration the fact that 51% of the controlling shares
of the respondent company are privately owned and 49% shares are owned
by the government and as a result of such disinvestment of 51% of the
shares of the company, the management and control, no doubt, has gone into
private hands.
9. The above said view which is in terms of the concept of
„privatization‟ is in consonance with the principle held by the Hon‟ble
Supreme Court in the constitutional bench judgment of BALCO Employees'
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Signing Date:18.10.2023
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Union (Regd.) v. Union of India, (2002) 2 SCC 333 . Relevant paragraph of
the same has been reproduced as under:
“ 60. As a result of disinvestment of 51% of the shares of the
Company, the management and control, no doubt, has gone
into private hands. Nevertheless, it cannot, in law, be said that
the employer of the workmen has changed. The employees
continue to be under the Company and change of management
does not in law amount to a change in employment. ”
10. This Court is of the view that there is no deep and pervasive control of
the State or the Government in the operation of the respondent company in
the instant petition. Therefore, the respondent company having been
privatized is not amenable to the writ jurisdiction, as per the decision
rendered by the Hon‟ble Supreme Court in BALCO Employees' Union
(Regd.) (Supra) .
11. In essence, the submission is that the petitioner is seeking a public law
remedy for an alleged private wrong. Only those decisions which have a
public element can be judicially reviewed under the writ jurisdiction. There
is no existence of a deep and pervasive State control on the respondent
company. The control if any is only regulatory in nature as applicable to
other similar bodies. In view of the same, the petitioner has failed to
appreciate that if the rights are purely of a private character, no writ can be
issued.
12. The respondent in the instant case is a private body and involved in
the commercial activities, therefore, as per the law settled, in such
circumstances, a writ cannot be held to be maintainable except a writ of
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Habeas Corpus, and the same has been already discussed in the judgements
mentioned hereinabove.
13. In light of the afore-mentioned judgments, this Court is of the view
that the grievance of the petitioner, if any, therefore, cannot be entertained
by way of a writ petition under Article 226 of the Constitution of India.
14. In view of the above, the petition is thus, dismissed as being not
maintainable. The petitioner is at liberty to approach the appropriate forum
to take recourse to remedies available in law. It is made clear that the
duration of the disposal of the present petition, shall be excluded for the
purpose of computation of limitation, in case the petitioner seeks to avail
remedy by instituting fresh proceedings.
15. Nothing stated hereinabove shall tantamount to any expression on the
merits or demerits of the case.
16. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
OCTOBER 12, 2023
Dy/ryp
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:18.10.2023
17:18:28
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