In the Supreme Court of India 1981 AIR 344, 1981 SCR (2) 52 Petitioner Fertilizer Corporation Kamgar Union (Regd.), Sindri and Ors. Respondent Union of India & ors. Date of Judgement 13 November 1980 Bench Justice Y.V. Chandrachud, (CJ); Justice P.N. Bhagwati' Justice V.R. Krishna Iyer; Justice Syed Murtaza Fazal Ali; Justice A.D. Koshal
In this momentous case, the Supreme Court of India enlightens the legal maxim “ Ubi jus ibi remedium” which postulates “ there is no right without a remedy” in other words there shall exist provisions to enforce the fundamental rights as engraved in the Indian Constitution. Article 32 of The Indian Constitution which connotes Right to Constitutional Remedy is an immunity which is a remedial provision available for every person in a situation where fundamental rights are infringed. In the above case in the words of the Supreme Court, it was said that “A right without a remedy is a legal conundrum of a most grotesque kind” accordingly, the right to enforce all fundamental rights is itself made a fundamental right under the constitution. The principle laid down in the case of Ashby v. White, 1 which enlights the maxim “Ubi jus ibi remedium” it was held that the defendant has infringed the legal right by not allowing the plaintiff to vote, therefore, the court held that his right to caste vote has been infringed therefore the plaintiff is entitled to remedy at law, in short, the legal maxim and the Article 32 conjointly goes parallel to posture the fundamental rights.
Constitution and Statutory Provisions:
- Article 32 of The Indian Constitution, 1950
- Article 19(1)(g) of The Indian Constitution, 1950
- Article 14 of The Indian Constitution, 1950
Fertilizer Corporation of India is a company incorporated under the Companies Act, 1956, and is a government company within the meaning of Section 617 of that Act, their directors are appointed by the President of India as per Article 66(1) of the Article of the Association. The Board of Directors of the company decided to invite the tenders for the sale of dispensable/disposable plants and equipment of the Sindri Fertilizer Co. Respondent 3. On 25 Feb 1980 invited tenders for the sale of nine units of the closed down chemical plants through advertisement and therefore it was decided that the procedure for selection of tenders would be conducted through the envelope system. Many purchasers took part in this operation/s, periodically the petitioner modulized and altered the policy of tender in accordance with the changes. Ganpatrai Agarwal- Respondent 4 was the highest bidder to purchase the disposable plant/s on the bid price of 7.6 Crores. Later the sale was adjourned in the notice that certain plants and machinery were required by Fertilizer (Planning and Development) and the Ramagundam Division. Thereafter the board decided that the modified tender/s shall be commenced of the reduced plants and machinery as a result fresh altered tender was released. Again Ganpatrai Agarwal who is Respondent 4 bids for the price 4.25 crore of that reduced stock which the tender committee referred as the best offer, thereafter the letter of intent was issued by the tender committee and in furtherance, Rs 50 lakh was paid by the Respondent 4 as a security deposit and initiated to dismantle the machinery and equipment in accordance with the obtained order of sale.
The aggrieved petitioner/s contended through Writ Petition No.3804 of 1980 ( Article 32 of the Indian Constitution) a) that the sale of equipment was undertaken without considering or referring the procurement by an expert or excluding the reports, b) reduction in tender price from 7.6 crores to 4.25 crore without any reasonable accounting, c).usage of ultra vires function in manipulating the sale, d). Restricting the fresh tenders in respect of modified and reduced items against the price of Rs.4.25 crore resulting unfair and arbitrary act, e). The decision created a huge diminution to the public exchequer f). The sale injured the employment of 11000 odd workers. Thus with this to the acquirement of the remedy under Article 32 of the Indian Constitution filed this Writ before the Supreme Court of India that such sale violated the fundamental rights under Article 19(1)(g) and provision of Article 14 of the Indian Constitution.
- Do the workers have locus standi under Article32 of the Indian Constitution, which is a special jurisdiction confined to enforcement of fundamental rights?
- Does the sale by the respondent Co. violate the Fundamental Right of worker/s/employees of the Co. under Article 19(1)(g) and Article 14 of the Indian Constitution?
Arguments on behalf of the Respondent:
The learned Attorney General who appeared on behalf of Respondent contended about the maintainability of the Writ Petition on the grounds that the petitioner has no Locus Standi to file the petition, secondly, the sale which is in good nature doesn’t violate any of the Fundamental Right of the Petitioner and such decision of selling down was taken as per policies which were amended from time to time.
Arguments on behalf of the Petitioner/s:
The Learned counsel on behalf of Petitioner urged that the sale of such disposable items from the unit of Sindri was highly in Ultra-Wires nature where the facts of the sale procurement were kept confidential from the Petitioner/s and that too sold in a lower than the market value ignoring the highest bid price tenders. Selling down such plant and equipment would reflect the employment cycle of the Factory which such activity infringed the fundamental rights of the Factory workers as per Article 19(1)(g) which in turn gave a leg-up to this Petition under Article 32 of the Indian Constitution which is maintainable in accord with the Remedy Provisions.
The apex court in context with the issue raised by the petitioner/s saw no concreteness in the grievances that were elevated as a question of violation under Article 19(1)(g) or there has been no impending danger of being violated by the sale of the disposable plants and equipment of the factory.
The apex court relied upon the facts which were filled in the counter-affidavit on behalf of Respondent, Shri R. C. Malhotra, Chief Engineer of the Sindri Unit and Shri K. V. Krishna Ayyar, Under Secretary in the Department of Chemicals and Fertilisers, Government of India stated that the modernization scheme was approved in November 1973, the scheme held to shut down the old ammonium plant based on coke and to set-up new ammonium plant producing a larger quantity with low sulphur heavy food stock. In connection to it, Shri R. C. Malhotra stated that then old plants and equipment had to be shunned down between 1976 to 1979 because of their low degradable and obstinacy life cycle which becomes unsafe or unworkable for the employees. And in furtherance, Shri R.C. Malhotra stated that the employees are actually deployed to the new set-up plants under the scheme of modernization and rationalization and thus they have been absorbed into various alternative employment in the same complex.
The Court stated that the petitioner Fundamental Rights have not been infringed on the sale of the equipment/industrial works. There is a huge difference in the right to occupation of industrial works and the right to work in a particular post and if the workers are retrenched on the occasion of procurement of sale then they have the rights and remedies under the Industrial Laws, but the closure of the establishment does not violate any Fundamental rights to carry on an occupation which is guaranteed by Article 19(1)(g) and rights under Article 14 of the Indian Constitution.
The Court viewed the question of arbitrariness of the sale on grounds that the decision of the Board/Committee was to put redundant or retired plants and equipment on sale, therefore the Board is accredited Article 68(20) of the Articles of Association of the Corporation to sell the whole/part of the undertaking with the prior approval of the President of India and such approval was taken before the sale was finalized in favor of Respondent.
The Board decided to put a small part of assets in the procurement of sale of Sindri units. Therefore it was necessary to put the redundant parts on sale because the life expectancy and value of those assets were out-lived having a run period of 18-28 years resulting unsafe, hazardous and uneconomic to run such plant and equipment and no employee was about to be retrenched on account of such sale. It was also held that Locus Standi must be equipped and shall be liberally used to meet the challenges, therefore, the term Ubi Jus ibi remedium shall be effectively enlarged to all the interest of the public-minded citizens and it must only be served for the public good and not it notorious mind intentions.
By looking to the veracity of the above facts the appeal of this Writ Petition was dismissed with no order as to costs. where the apex court upheld that such sale does not deteriorate the rights conferred under Article 19(1)(g) and Article 14 of the Constitution of the petitioner/s.
The Apex Court rightly covered the issues in the context of the law and justified prolifically and the judgment was pronounced in the interest of law. At last, the court highlighted the provisions of Article 226 of The Indian Constitution which would have been the correct immunity to seek relief for the aggrieved petitioner/s and would have been permitted in the High Court by their Lordships. Even the apex court emphasized upon Article 43(a) which connotes the participation of workers in the management of industries the State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry which would have been played as a catalyst, if the petitioners sought relief under Article 226 of the Constitution.
“The views of the authors are personal“
1 Ashby v. White (1703) 2 Raym Ld.983.