Anil Kumar Anand v. Union of India & Ors.

10. The petitioner in person submitted that the instant petitions along with the other connected matters are maintainable under the writ jurisdiction of this Court. The Unit Trust of India was established under the provisions of the Unit Trust of India Act, 1963, The petitioner was appointed by the UTI as Staff Officer Grade „A‟, in the cadre of the officers in Class-I, which is duly prescribed under Rule 7 of the Unit Trust of India (Staff) Rules, 1978, which alone governs the service conditions of the officers and other employees of the UTI.

11. It is submitted that after the Unit Trust of India (Transfer of Undertaking and Repeal) Act, 2002 (58 of 2002) (Repeal Act), came into force on 29th October, 2002, the Government of India transferred the entire initial capital of the erstwhile Unit Trust of India, onto itself, under Section 3(1), which shall be refunded by the Central Government, under Section 3(2), to the Development Bank, Life Insurance Corporation, State Bank and W.P.(C) 6042/2018 and 5 other connected matters the subsidiary banks and other institutions, to such extent as may be determined by the Central Government, having regard to the book value, the assets and liabilities of the UTI.

12. It is submitted that post the repeal of the Unit Trust of India Act, 1963, the entire undertaking of the erstwhile Unit Trust of India, became the wholly owned undertaking of the Central Government and the Government of India became the „Principal Employer‟ of the petitioner, who actually worked for and under the direct control of the Central Government between the period from 29th October 2002, to 31st January 2003.

13. It is submitted that post the repeal, the Central Government provided the required capital to its instrumentalities, i.e., the State Bank of India, Punjab National Bank, Bank of Baroda and the Life Insurance Corporation of India, to constitute and establish the UTI Mutual Fund which has been constituted and established as a trust registered under the Indian Trust Act, 1882, as UTI Trustee Company Pvt. Ltd., in its capacity as the first and the sole „Trustee‟ or „Trustee Company‟ of the UTI Mutual Fund, which has been notified under Section 2(h) of Repeal Act.

14. It is submitted that as per the mandate under Section 4, 5 and 6 of the Repeal Act, once a company is notified under Section 2(h) of the Repeal Act, both the assets of the erstwhile UTI under Schedule-II and the employees of the erstwhile UTI, under Section 4 and 6, respectively, go to the same company, i.e. UTI Trustee Company Pvt. Ltd., and the UTI Mutual Fund. The Repeal Act provides for just one “specified company” and further specifically also provides for a „Statutory Transfer‟ of all the W.P.(C) 6042/2018 and 5 other connected matters employees of the erstwhile UTI, only to the „UTI Trustee Company Pvt. Ltd.‟, which alone has been notified under Section 2 (h) of the Repeal Act, in Gazette Notification no. S.O.(E) dated 15th January 2003.

15. It is submitted that in accordance with the above submissions, and as per the mandate of the Parliament, the petitioner was statutorily transferred to the UTI Mutual Fund and hence, the employer became a statutory employer of the petitioner. Hence, taking into consideration the same, it is apparent that the petitioner is an employee of the State, thereby, making the grievances of the petitioner amenable to be adjudicated under the writ jurisdiction of this Court.

16. It is submitted that UTI AMC, being only a deemed employer of the petitioner, has no locus standi to seek dismissal of this writ petition. It is purely an afterthought and a desperate attempt to mislead this Court away from the actual state of affairs in their efforts to delay administration of justice.

17. The petitioner in person, with regard to the merits of the instant petition, submitted that the W.P. (C)-6042/2018, deserves to be allowed since the penalty of termination, imposed upon the petitioner vide order dated 26th February 2018, lacks procedural fairness.

18. It is submitted that the petitioner was terminated without receiving the charge sheet, show cause notice, or even an opportunity to respond to charges and the same is in contravention of the principles of natural of justice and fundamental rights under Articles 14, 15, 16, and 21, of the Constitution of India.

19. It is submitted that the respondents have imposed the punishment of „immediate removal‟ upon the petitioner because he was absent for a period of 35 days. The said penalty is unjustified and has been imposed without any evidence of gross misconduct, thereby, inflicting arbitrary decisions.

20. It is submitted that the initiation of departmental proceedings against the petitioner was flawed and ex-parte. The complete departmental proceedings are contrary to the settled legal principles of service jurisprudence.

21. It is submitted that the petitioner was transferred from a Class-I cadre to a Non-Class-I post in the 'Officer Executive Cadre', which does not even form a part of the permanent staff per Rule 7 of the Unit Trust of India (Staff) Rules, 1978. This cadre, governed by Rule 55 (1)(c), arbitrarily imposed an unspoken major penalty of 'Demotion to lower post' without due process and show cause notice, thereby violating principles of natural justice and other fundamental rights of the petitioner. This also constituted a loss of the service conditions available to an officer of belonging to the “Officer Executive Cadre”, under Section 6(1) of the UTI Repeal Act.

22. It is submitted that the inquiry against the petitioner was initiated by the UTI AMC on 27th June 2016, without notice and subsequent proceedings were rushed, with the first sitting being held on 5th July 2016, when the charge sheet was still in transit.

23. It is submitted that the next meeting of enquiry was also on 12th July 2016, i.e., within a week, and the inquiry was closed immediately after hearing the management‟s presentation, leading to an ex-parte conclusion on 4th August 2016, despite the petitioner‟s requests for postponement and a change in the enquiry officer. Correspondence to this effect was duly received by the enquiry officer and the respondent UTI AMC, as evidenced in the records of the inquiry proceedings held on 4th August 2016.

24. It is submitted that the petitioner was on ordinary leave when the charge sheet against him was issued, i.e., on 27th June 2016, which ultimately lead to his dismissal, and therefore, considering the grounds of violation of principles of natural justice on behalf of the respondent UTI AMC, the dismissal order ought to be set aside being illegal.

25. It is submitted that the official documents necessary for defense in the inquiry were not provided, denying a reasonable opportunity to present a case thereby, violating principles of natural justice. Further, the UTI AMC had stopped salary payments after May 2016, refusing subsistence allowance despite specific requests. This action was highly prejudicial to the petitioner's interests, leaving him without means.

26. It is submitted that pursuant to Rule 55 of the UTI Staff Rules, charges must be formally framed in writing and presented to the employee, affording them an opportunity to respond in writing, and Email communications are not stipulated as the prescribed mode under the said Rules.

27. It is submitted that the UTI AMC, acting as a deemed employer of the petitioner, lacks the lawful authority and jurisdiction to independently dismiss the petitioner without the approval of the Government of India and/or UTI Mutual Fund, i.e., the statutory employer of the petitioner.

28. It is submitted that the dismissal order was not issued by the chairman, rendering the proceedings against the petitioner to be illegal and therefore, liable to be set aside.

29. In view of the foregoing submissions, it is submitted that the instant petition along with other connected matters are maintainable, and accordingly, the same may be allowed and the impugned order be set aside. (On behalf of the respondent)

30. Per Contra learned senior counsel appearing on behalf of the respondent UTI AMC vehemently opposed the instant petition and submitted that the instant petition is liable to be dismissed at the threshold since the same is non maintainable under the writ jurisdiction of this Court.

31. It is submitted that the present batch of writ petitions against the respondent UTI AMC is not maintainable in as much as the UTI AMC is neither the „State‟ nor the „other authority‟ under Article 12 of the Constitution of India.

32. It is submitted that through the enactment of the Repeal Act, the legislature repealed the Unit Trust of India Act, 1963, resulting in the cessation of Unit Trust of India as an entity.

33. It is also submitted that all the businesses, assets, and liabilities were transferred to two entities: 'Specified Company' and 'Specified Undertaking.' Market-related schemes from Schedule II were transferred to the 'Specified Company,' while assured schemes from Schedule I was vested in the „Specified Undertaking‟.

34. It is further submitted that under Section 6 (1) of the Repeal Act, officers and employees of the erstwhile UTI became part of the 'Specified Company', i.e., the respondent UTI AMC.

35. It is submitted that initially, UTI AMC‟s share capital was equally held by Bank of Baroda, Punjab National Bank, State Bank of India, and Life Insurance Company. Further, in the year, 2010, these entities collectively sold 26% of their share capital to „M/s T. Rowe Price International Ltd.‟, a USA-based global asset manager.

36. It is further submitted that following the sale, „M/s T. Rowe Price International Ltd.‟, became the largest shareholder, and the original entities‟ shareholding in UTI AMC reduced to 18% each, and the sale to „M/s T. Rowe Price International Ltd.‟ was affirmed by the Hon'ble Supreme Court of India in S.L.P. (Civil) No. 7837/2021.

37. It is submitted that for the purposes of complying with the Regulation 7 (B) of the SEBI (Mutual Fund) Regulations (Amendment), 2018, which requires the sponsors to hold no more than 10% of shareholding or voting rights in the asset management company, the original sponsors of UTI AMC needed to reduce their holdings in UTI AMC.

38. It is further submitted that, consequently, in October 2020, a public issue arose, and post-IPO, 22.96% of UTI AMC‟s shareholding belongs to „M/s T. Rowe Price International Ltd.‟, while 31.21% is held by the public and IPO subscribers. As of now, UTI AMC‟s shareholding is distributed as; Public: 31.20%, T. Rowe Price International: 22.96%, Punjab National Bank: 15.22%, State Bank of India: 9.98%, Bank of Baroda: 9.98%, Life Insurance Corporation: 9.98%, and Employees/Others: 0.70%; hence, total: 100.00%.

39. It is submitted that in view of the preceding submissions, the Government of India does not hold more than 51% shares in UTI AMC, which takes it out of the ambit of Article 12 of the Constitution, wherein the answering respondent is neither a State, nor other authority.

40. It is submitted that the petitioner has included various irrelevant entities as respondents, such as State Bank of India, Punjab National Bank, Bank of Baroda, Life Insurance Corporation Ltd., and M/s T. Rowe Price International Ltd. The petitioner has acknowledged in Writ Petition No.7114/2015 that UTI AMC was his actual employer, as also evidenced in the transfer order dated 10th May 2016, and the dismissal order dated 26th February 2018, both issued by the UTI AMC.

41. It is submitted that the petitioner joined the erstwhile Unit Trust of India in 1986, which ceased to exist with the Unit Trust of India (Transfer of Undertaking and Repeal) Act, 2002. Section 6(1) of the Repeal Act, stipulates that officers and employees of the Trust would become employees of the specified company, UTI Asset Management Co. Ltd., as declared by the Central Government in its notification dated 15th January 2003. The petitioner, along with other employees, became an employee of the respondent UTI AMC, from the appointed day, i.e., 1st February 2003, in accordance with Section 6 of the Repeal Act.

42. It is submitted that the petitioner, in a letter dated 4th August 2016, acknowledged that Mr. Kamlesh Dangi of UTI AMC, is the competent W.P.(C) 6042/2018 and 5 other connected matters authority, the applicability of UTI Asset Management (Staff Rules), 2003, and UTI AMC as the 'Specified Company' of the erstwhile Unit Trust of India. Consequently, the present writ petition under Article 226 of the Constitution of India is deemed not maintainable.

43. The learned senior counsel, in support of his arguments, relied upon the judgment dated 20th June 2022, passed by the Division Bench of the High Court of Bombay, in Writ Petition (C) no. 6512/2021, titled as Mukesh Kappor v. Union of India & Anr., and submitted that the concerned bench while dismissing the writ petition filed by the officers of the UTI AMC, has held that that the writ petition against UTI AMC, is not maintainable, as it does not fall within the meaning of „other authority‟, under Article 12 of the Constitution of India.

44. The learned senior counsel placed further reliance on the judgment dated 16th December 2022, passed by the Division bench of this Court, in the matter of Indian Airlines officers Association v. Union of India & Anr., bearing W.P (C) no. 6090/2016, and submitted that this Court ruled that the writ petition filed by the Officers Association of Air India Limited is not maintainable post-disinvestment. This Court noted that Air India's 100% shareholding was acquired by M/s Talace Pvt. Ltd. on 27th October 2022, making it a non-government company and, thereby, outside the Court's writ jurisdiction. The Court further emphasized that while the writ petition was initially maintainable in the year 2016, the change in circumstances as on date, precludes the Court from entertaining a writ petition against the entity which does not fall within the domain of “State”.

45. It is further submitted that in view of the law laid down by the aforesaid judgment UTI AMC does not fall within State since it does not fall within domain of State or other authority pursuant its disinvestment, hence, no writ can be entertained against the respondent/UTI AMC.

46. In view of the foregoing submissions, it is prayed that the present batch of writ petitions be dismissed on the grounds of maintainability.

ANALYSIS AND FINDINGS

47. The matter was heard at length and this Court has perused the entire material on record. This Court has duly considered the factual scenario of the matter, judicial pronouncements relied on by the parties and pleadings presented.

48. During the course of the arguments, the learned senior counsel appearing on behalf of the respondent UTI Asset Management Company Ltd., has raised the preliminary objection with respect to the maintainability of the above mentioned writ petitions.

49. The learned senior counsel had raised the said objection on the ground that theanswering respondent does not fall within the ambit of Article 12 of the Constitution of India, and therefore, the present batch of petitions are liable to be dismissed at the threshold.

50. Since, a preliminary objection has been raised with regard to the maintainability of the writ petitions filed by the petitioner herein, therefore, at this stage; this Court deems it imperative to decide the issue of W.P.(C) 6042/2018 and 5 other connected matters maintainability of the petitions first, in view of the submissions advanced and material available on the record.

51. It is a settled law that 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 of the Constitution, 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 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.

52. Accordingly, a Government-owned entity which has been subsequently privatized and has been performing commercial functions is no longer considered "State" under Article 12. Therefore, a writ is not maintainable against them. This position of law has been enunciated in a catena of judgments which have been discussed herein below.

53. At this juncture, it is imperative to note that the category applicable upon UTI AMC under Article 12 of the Constitution of India shall be „other Authorities‟.

54. Before delving further into the analysis of the issue of maintainability, Article 12 of the Constitution of India has been reproduced below:

55. The Hon‟ble Supreme Court in the matter of Pradeep Kumar Biswas vs Indian Institute Of Chemical Biology and Ors., (2002) 5 SCC 111, while enunciating the principles of maintainability of the writ petitions against a non-government entity, reaffirmed one of its earlier decision passed in the matter of Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, held as under:

56. In regard to the above mentioned judgment, the question in each case would be whether in the light of the cumulative facts as established, the employer, i.e., the UTI AMC herein, can be culled into the ambit of Article 12 or not.

57. Considering, the peculiar submissions raised herein, it would now be this Court‟s endeavor to decide the contentious issue of maintainability based on the dicta of the Hon‟ble Supreme Court and High courts, in respect of matters where service disputes raised by officers/employees in proceedings before the Courts required, in view of the status of the employers, as of necessity, determination of the primary question as to whether such employers were amenable to the writ jurisdiction under Article 226 of the Constitution.

58. The issue before this Court has been already dealt with by a Division Bench of the High Court of Bombay in the matter of All India IDBI Officers Assn. v. Union of India, 2022 SCC OnLine Bom 269, wherein, the bench held that a Government entity which no longer falls within the ambit of a “state” under Article 12 of the Constitution of India, is not amenable to the writ jurisdiction under Article 226 of the Constitution. Relevant extracts of the same are reproduced as under:

95. Having noted G. Bassi Reddy (supra), we move on to consider Federal Bank v. Sagar Thomas103 which followed within a few months of the former decision. In Federal Bank (supra), the question arising for decision was whether the appellant bank was a private body or falls within the definition of “State” or local or other authorities under the control of the Government within the meaning of Article 12. Incidentally, the civil appeal before the Supreme Court arose out of a writ petition instituted by a dismissed employee of the appellant bank. The relevant High Court held the writ petition to be maintainable. Considering various precedents, the Court proceeded to hold that: “18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v.) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.”

104. Next in the series is the decision in Jatya Pal Singh (supra). As noted above, it arose out of an order dated 8th September 2009 of a Division Bench of this Court dismissing a writ petition filed by the appellant. No separate reason was assigned by the Division Bench except observing that the reasons assigned by it while dismissing an earlier writ petition involving common questions of fact and law by its order dated 7th September 2009 would apply to the writ petition of the appellant (Jatya Pal Singh) before the Supreme Court. From the report, we have found that the other petitioner too was before the Supreme Court with an independent appeal, titled M.P. Singh v. Union of India The decision also appears to have dealt with civil appeals arising from orders of dismissal of writ petitions passed by the Delhi High Court.

105. The appellants were employees of VSNL. Their services were terminated by VSNL. The writ petitions were dismissed on the ground that VSNL was not amenable to the writ jurisdiction. For the reasons assigned in the common judgment, the appeals stood dismissed.

106. It was contended on behalf of the appellants that VSNL cannot be said to be not amenable to the writ jurisdiction in view of the shareholding pattern which revealed that Union of India, holding 26.97% shares, was the single largest shareholder in VSNL and other Government companies held 17.35% shares. Furthermore, VSNL was under the complete control of the Telecom Regulatory Authority of India (TRAI) Act, 1997 and the Telegraph Act,

1948. Therefore, writ petitions would lie in cases where the services of the employees were terminated in breach of the rules governing the service conditions of the employees. It was further the case of the appellants that Panatone Finvest Ltd. having stepped into the shoes of the erstwhile shareholder is bound by the commitments and obligations, rights and liabilities arising from the sale/purchase of shares.

107. The Court noted that after disinvestment of VSNL in 2002, the name of VSNL being a TATA group company was changed to Tata Communications Ltd. (TCL). However, the orders of termination impugned in the writ petitions were issued before such change took place. After noting Pradeep Kumar Biswas (supra), the Court examined whether TCL was performing public functions and answered the question in the negative. Having considered Binny Ltd. (supra), the Court held that: “52. These observations make it abundantly clear that in order for it to be held that the body is performing a public function, the appellant would have to prove that the body seeks to achieve some collective benefit for the public or a section of public and accepted by the public as having authority to do so.

53. In the present case, as noticed earlier, all telecom operators are providing commercial service for commercial considerations. Such an activity in substance W.P.(C) 6042/2018 and 5 other connected matters is no different from the activities of a bookshop selling books. It would be no different from any other amenity which facilitates the dissemination of information or data through any medium. We are unable to appreciate the submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing the fundamental rights under Article 19(1)(a) of the Constitution. The recipients of the service of the telecom service voluntarily enter into a commercial agreement for receipt and transmission of information.

54. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. Right to education is a fundamental right for children up to the age of 14 as provided in Article 21-A. Therefore, reliance placed by the learned counsel for the appellants on the judgment of this Court in Andi Mukta would be of no avail. In any event, in the aforesaid case, this Court was concerned with the non-payment of salary to the teachers by Andi Mukta Trust. In those circumstances, it was held that the Trust is duty-bound to make the payment and, therefore, a writ in the nature of mandamus was issued.”

108. The Court, therefore, held that a writ petition would not be maintainable against VSNL, a fortiori, TCL.”

59. In the aforementioned judgment, the issue similar to that of the present petition arose before the Division bench for adjudication. In the instant writ petition, Section 6 of the Repeal Act enunciates the provisions in W.P.(C) 6042/2018 and 5 other connected matters respect of officers and other employees of the UTI Trust are being discussed. Similarly, in the matter of All India IDBI Officers Assn. (Supra), Section 5 of the Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003, was discussed, and the said clause also discusses about the provisions in respect of officers and other employees of the Development Bank therein, therefore, both the provisions are para materia.

60. With regard to the status of employees after a body which was previously amenable to the writ jurisdiction, but due to disinvestment, such body is no longer falling within the meaning of State, was discussed in the matter of Balco Employees' Union v. Union of India, (2002) 2 SCC 333), wherein, the Hon‟ble Supreme Court observed as under:

61. The Division Bench of the High Court of Bombay, in the matter of R.S. Madireddy and Another Vs Union of India and Others, 2022 SCC OnLineBom 6638, discussed the affect of privatization of a government undertaking upon the employee‟s right to approach a writ Court, and observed that Air India Ltd., now being a private body, wholly owned by a private organization, has ceased to be a public body and therefore, no writ can lie against AIL in the circumstances that exist today. Relevant paragraphs of the same are reproduced herein:

62. With regard to the present respondent i.e., UTI AMC, the Hon‟ble Supreme Court in its judgment dated 1st November 2013, in the matter of Arun Kumar Agrawal v. Union of India, W.P (C) no. 374/2012, observed that UTI AMC is not a government company. It further observed that in a W.P.(C) 6042/2018 and 5 other connected matters company like UTI AMC, it is the shareholder on the Board who decides the questions of appointment/recruitment. The relevant portion is extracted as under:

63. The Division Bench of the High Court of Bombay, while adjudicating upon a writ petition against the UTI AMC, held that the UTI AMC, is a W.P.(C) 6042/2018 and 5 other connected matters private entity, not falling under Article 12 of the Constitution and thus, would not be amenable to the writ jurisdiction. The relevant paragraphs of Zee Learn Ltd. v. UTI Asset Management Co. Ltd., 2020 SCC OnLineBom 806, are as follows:

64. Furthermore, the Division bench of the Bombay High Court, discussed the aspect of maintainability of a petition under Article 226 of the Constitution against UTI Asset Management Company Ltd., and rejected the contention that UTI AMC is State or other authority, under Article 12 of the Constitution of India. Relevant extracts of the judgment dated 20th June 2022, in the matter of Mukesh Kapoor & Ors. v. Union of India & Anr., W.P (C) no. 6512/2021, have been reproduced below:

42. There is more emphasis on the provisions of Section 6 of the Repeal Act, 2002. Those provisions give protection to the employees of erstwhile UTI when they will be continued with respondent no.2. There are UTI Asset Management Company (Staff) Rules, 2003. The petitioners relied upon registration of officer‟s association with the Office of Labour Commissioner, Mumbai. Article 12 falls under Part III relating to fundamental rights. Whereas Article 311 falls under Part XIV. It deals with protection from dismissal to persons serving with Central or State Government. This protection can be made applicable only W.P.(C) 6042/2018 and 5 other connected matters when the employees are the members of the services of Union or State. The present petitioners cannot be said to be employees working with Union or State. x x x

45. For the above discussion we are unable to satisfy ourselves that the respondent no.2 falls within meaning of „other authority‟ under Article 12 of the Constitution. Hence we reject all the contentions taken in that behalf by the petitioners and uphold the objection taken about maintainability of the petition by the respondent no.2.”

65. In light of Balco Employees' Union (Supra), it is observed by this Court that the employees have no vested right in the employer company continuing to be a government company or „other authority‟ for the purpose of Article 12 of the Constitution of India. The employees cannot claim any right to decide as to who should own the shares of the company. The State which invested of its own volition, can equally well disinvest. So long as the State holds the controlling interest or the whole of the shareholding, the employees may claim the status of employees of a Government company or “other authority” under Article 12 of the Constitution. The job prescribed to the employees does not prevent the Government from disinvesting; nor does it make the consent of the employees a necessary precondition for disinvestment. Therefore, the question whether the employees have any vested right in their employer continuing to be a Government Company, is no longer res integra.

66. Upon perusal of the above, this Court is of the considered view that all the employees of UTI were given an option to accept the employment with the UTI AMC, on the same terms and conditions and with the same rights and obligations, as they would have had in respect of the employment with the erstwhile UTI, if the same had not been bifurcated into UTI AMC. The assurance held out to them is with regard to the terms and conditions of their service and not as to the nature of the employer, i.e., UTI AMC. There was no assurance that can be read with Section 6 of the Repeal Act, to the effect that UTI AMC would continue to be a Government Company.

67. The scheme of the Repeal Act further discloses that UTI created under the Unit Trust of India Act, 1963, ceased to exist and in its place the Specified Company, i.e., UTI AMC and the Administrator of the Specified Undertaking of the Trust were created which took charge of all the properties, business assets, rights, etc. of the erstwhile Unit Trust of India. The initial capital of the UTI Trust stood transferred to and vested in the Central Government under Section 3(1) of the Act. Sub-section (2) of Section 3 of the Act, however, mandated that the initial capital contributed by the named contributors shall be refunded by the Central Government to such extent as may be determined by it. Section 21 of the Act provides for the repeal of the Unit Trust of India Act, 1963, and the dissolution of its Board of Trustees. Moreover, erstwhile UTI was a statutory corporation and its functions mentioned in the Schedule II deals with the schemes and plans now stands transferred to UTI AMC.

68. This Court after consideration of all the factors, has come to the conclusion that earlier the Central Government was having control over the activities of erstwhile UTI. However, further development crystallizes that the Government has given autonomy to the management of the company. Over a period of time, the Government decided to disinvest the erstwhile UTI and accordingly it reduced its stake in the share capital of the erstwhile UTI.

69. At this stage, it is also material to note that as per Section 2 (45) of the Companies Act, 2013, a „government company‟ which means that any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments, and includes a company which is a subsidiary company of such a Government company. Therefore, upon contemplation of the material available on record and perusal of the judgments mentioned in the foregoing submissions, it is drawn that the original subscribers of UTI AMC, i.e., the Government, hold less than 51% of the total paid up share capital. It is further observed that the management of the company is operated by a Board of Directors, and there is nothing on record which would specify or even hint to the fact that the concerned management of UTI AMC is required to take approval from any of the government authorities while taking decision with regards to UTI AMC.

70. Rather, it can be understood that the Government through its instrumentalities have withdrawn from the ownership and management of UTI AMC and does not intend to have any financial or administrative control over the operation and management of UTI AMC.

71. Moreover, Article 12 falls under Part III of the Constitution of India which pertains to the fundamental rights, and any person employed with any of the instrumentality of State or other authority, is given a protection under the Constitution of India from arbitrary and illegal dismissal since that would amount to infringement of the fundamental or legal rights that the concerned employee is entitled to exercise.

72. It is noted that this Article 311 of the Constitution of India can be made applicable only when such employees are working with the State or other authority and the present petitioner cannot be said to be an employee of State or other authority due to the reasons specified in the preceding paragraphs that the respondent UTI AMC does not fall within the ambit of Article 12 of the Constitution of India.

73. There is no provision in the Repeal Act, which shows that the Central Government is empowered to issue any instructions or control the operations of UTI AMC. It is thus deliberated that the Government does not have 100% shareholding of UTI AMC and insofar as UTI AMC is concerned, it is a limited company.

74. Accordingly, this Court is of the view that when a new private entity has formulated its polices such as the answering respondent in the instant case, and its constitution has changed completely, thereby, changing the nature of functioning, UTI AMC cannot be treated as it was existing originally, i.e., an instrumentality of the State or other authority, and hence, W.P.(C) 6042/2018 and 5 other connected matters the same cannot be said to be a „State‟ or even „other authority‟ under Article 12 of the Constitution.

75. It is an admitted position that due to the subsequent developments, this Court is precluded from issuing any writ, in the current situation. This Court is of the view that the transfer of ownership places the concerned company outside the writ jurisdiction of this Court.

76. This Court need not enter into any determinative findings on the submissions regarding the petitioner‟s claims w.r.t. quashing of termination order, etc. since that would clearly relate to the merits of the action which has been taken by UTI AMC. A challenge to the same, while being open to be addressed before a competent forum and on grounds which may otherwise be permissible in law, cannot be the subject matter of consideration in a writ petition under Article 226 of the Constitution of India.

77. Therefore, the grievance of the petitioner can be redressed only before the competent forum which can deal with the dispute between two private parties, and not under Article 226 of the Constitution of India.

CONCLUSION

78. In view of the above discussions, this Court is of the considered opinion that the instant batch of writ petitions under Article 226 of the Constitution of India, are not maintainable against the present respondent due to the aforesaid discussions of facts and law.

79. It is held that in the absence of the service conditions being controlled or governed by statutory provisions the matter would remain in the realm of W.P.(C) 6042/2018 and 5 other connected matters an ordinary contract of service ultimately making the concerned employer not amenable to the writ jurisdiction under Article 226.

80. This Court, hereby, upholds the objections taken by the respondent on the aspect of the maintainability of present batch of petitions.

81. It is prudent to mention herein, that this Court has not gone into the merits of the matter and the present judgment, however, shall not deprive the petitioner of his right to take recourse in accordance with the law.

82. Therefore, the petitioner is granted liberty to take recourse to the remedies available before a competent forum. Further, the time period for which the writ petitions have been pending in this Court shall be excluded for the purpose of computation of limitation in case the petitioner may seek any remedy by instituting fresh proceedings before a competent forum.

83. Accordingly, the present batch of petitions stand dismissed on the ground of non-maintainability. Pending applications, if any, also stand dismissed.

84. The judgment be uploaded on the website forthwith.

JUDGE DECEMBER 15, 2023 gs/ryp/db