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A memorial submitted to the High Court of Kalyana in response to a petition filed by the Chamber of Private Sector challenging the constitutional validity of the Kalyana State Equal Opportunity of Employment in Private Sector Act, 2021. The memorial raises issues such as the applicability of Article 12 of the Constitution of India to private sector concerns, the validity of rules prohibiting employees from joining political parties, and the impact on fundamental rights under Articles 14, 19(1)(a), and 19(1)(c). The document also includes references to relevant constitutional provisions, statutes, and case laws.
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Before
IN Writ Petition (C) NO. __ OF 2022
Chamber of Private Sector ā¦PETITIONER
Memorial Submitted to the Registry of the Honāble High Court of Kalyana
Team Code: CHAMBAL
SCC Supreme Court Cases AIR All India Reporter Hon'ble Honourable UOI Union of India S. Section A. Article COI Constitution of India Edn. Edition Vol. Volume H.P Himachal Pradesh A.P Andhra Pradesh M.P Madhya Pradesh ILR Indian Law Reports SCR Supreme Court Reporter
Cases Ramana Dayaram Shetty vs The International Airport ... on 4 May, 1979 AIR 1628, 1979 SCR (3)
Board Of Control For Cricket vs Cricket Aasociation Of Bihar & Ors on 18 July, 2016
Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors. Etc on 13 November, 1980 , 1981 AIR 487, 1981 SCR (2) 79
Zee Telefilms v. Union of India 2005 AIR SCW 2985 5 Pradeep Kumar Biswas vs Indian Institute Of Chemical ... on 16 April, 2002 6 Som Prakash Rekhi vs Union Of India & Anr on 13 November, 1980, 1981 AIR 212, 1981 SCR (2) 111
Ramana Dayaram Shetty vs The International Airport ... on 4 May, 1979 AIR 1628, 1979 SCR (3)
Electricity Board v. Mohan Lal AIR 1967 SC 1857 9 Chintaman Rao vs The State Of Madhya Pradeshram 1951 AIR 118, 1950 SCR 759 10
State Of Madras vs V.G. Row.Union Of India & State ... on 31 March, 1952, AIR 196, 1952 SCR 597
Article 299 of the Constitution of India Books Indian Constitutional Law, M P Jain, Seventh Edition, Lexis Nexis Principles of Administrative Law, Justice G P Singh, Justice Alok Aradhe, Sixth Edition, Lexis Nexis Administrative Law, Kailash Rai, Allahabad Law Agency
The Petitioner Ms. Chamber of Private Sector , in Writ Petition(C) __ of 2022 has approached the High Court of Kalyana under Art. 226 of the Constitution of India.
Preamble
ļ· Preamble of the Act provides that it is an Act (i) to secure the interests of the local people and (ii) also to promote the interest of investors by providing for equal opportunities in employment in private sector and (iii) to insulate the private sector from political interference
Applicability
ļ· The Act applies to
(i) All companies, partnership firms, societies, trusts, limited liability partnership firms (ii) Any person employing 20 or more persons
ļ· It will be in immediate force and private sector has to comply with the requirements of the Act by 2025. Reservations for Local Candidates
ļ· All such employers must provide 50% of skilled jobs and 80% of unskilled jobs to local candidates.
Benefits
ļ· Benefits provided from the state in the form of land at subsidized price, free electricity, free water, exemption from taxes, etc.
Compulsory for compliance
ļ· Skilled jobs are defined to be those jobs that require the applicants to be technically qualified. ļ· Further the State Government is authorised to notify a list of skilled jobs to which the Act applies.
Dispensable
ļ· Employers may claim an exemption from providing reservation to locals if adequate number of local candidates of desired skill, qualification or proficiency are not available.
Offences and Penalties
ļ· In case of failure to comply with the provisions of the Act, the private sector concern has to return the benefit it has received from the government
Delegated Legislation
The State Government through the Kalyana State Equal Opportunity of Employment in Private Sector Rules, 2021 provided that the employees cannot join political parties including students wings of the political parties
As per Article 12, the respondent contends that private sector concerns falls under the definition of Other Authority The Respondents are contending that Private Sector comes under the definition of state under Article 12, even though they may claim, they are not a state. So the petitioners are still amenable to Writ Jurisdiction under Article 226 of the Constitution
The Act violates the fundamental right to carry on business. The Respondents are contending that the fundamental right to carry in business as guaranteed in Part III under Article 19(1)(g) of the Constitution of India is not an absolute right and subject to reasonable restrictions under Article 19(6),............
The government is estopped from superimposing the Acton the private sector after attracting them to invest in the state with concessions. The respondent contends that to in event of upholding the public order the Act had to be superimposed on the private sector, and hence the Law of Promissory Estoppel doesn't apply
The rule prohibiting the employees from joining political parties including students wings of the political parties is ultravires the Act and also the Constitution The rules formulated under Kalyana State Equal Opportunity of Employment in Private Sector Rules, 2021 provided that the employees cannot join political parties including students wings of the political parties. This is not in violation of the Constitutional Provisions and also ultravires the Act as the State Government has made the Rules in accordance with the object of the Act.
In the case of Board of Control for Cricket Vs. Cricket Association of Bihar^2 , This famous case deals with the powers and functions of the Board of Control for Cricket in India (BCCI). The Court herein elaborated upon the role of BCCI as a āStateā under Article 12 of the Constitution of India.
The main issues in the case were:
2 Board Of Control For Cricket vs Cricket Aasociation Of Bihar & Ors on 18 July, 2016 3 Ramana Dayaram Shetty vs The International Airport ... on 4 May, 1979 AIR 1628, 1979 SCR (3) 4 Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors. Etc on 13 November, 1980 , 1981 AIR 487, 1981 SCR (2) 79
In the process, the Court re-affirmed its decision in the case of Zee Telefilms v Union of India^5_._ In this case, the Court had declared BCCI to be a non-state entity, amenable under the writ jurisdiction of the High Courtās under Article 226 of the Constitution of India and discharging functions of public importance.
The answer to the first issue was in negative as Court excluded BCCI from the definition of the word āStateā under Article 12 of the Constitution. However, the Court observed that the BCCI even though not a āStateā under Article 12, it did perform certain public functions like selection of the team to represent the country in international arena and had a complete sway on the game of cricket which made it amenable to the writ jurisdiction of the High Court under Article 226.
That private sector concerns are not 'state' for the purpose of Part-III of the Constitution.
Respondent contends that Private sector concerns fall under the definition of state under the purview of Article 12 of Constitution of India.
Article 12 of the Indian Constitution states that,
āDefinition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.ā
5 Zee Telefilms v. Union of India 2005 AIR SCW 2985
In Pradeep Kumar Biswas vs. Indian Institute of Chemical Technology^6 The court held that the principles formulated in the case of Ajay Hasia was not rigid and therefore of a body falls within any of them, itās to be considered to be a state within the meaning of Article 12. As per the court, the question in each case will have to be considered on the basis of facts available as to whether the established body is financially, functionally and administratively dominated by or under the control of the Government. Moreover, such control must be particular to the body in question and must be pervasive. If these factors are found, then the body is to be construed as state within Article 12
In Som Prakash v. Union of India, AIR 1981 SC 212^7
The preponderant considerations for pronouncing an entity as a State agency or instrumentality are:
ļ· financial resources of the state being the Chief finding source; ļ· the functional character being governmental in essence; ļ· plenary control residing in government; prior history of the same activity having been carried on by the government and made over to the new body; ļ· some element of authority or command. Whether the legal person is a corporation created by a statute, as distinguished from under a statute, is not an important criterion although it may be an indicium 6 Pradeep Kumar Biswas vs Indian Institute Of Chemical ... on 16 April, 2002 7 Som Prakash Rekhi vs Union Of India & Anr on 13 November, 1980, 1981 AIR 212, 1981 SCR (2) 111
In the case of R.D.Shetty v/s International Airport Authority^8 , the Court laid down five tests to be considered āother authorityā: ļ· Entire share capital is owned or managed by State. ļ· Enjoys monopoly status. ļ· Department of Government is transferred to Corporation. ļ· Functional character governmental in essence. ļ· Deep and pervasive State control. ļ· Object of Authority
In Electricity Board, Rajasthan v. Mohan Lal^9 : The Supreme Court held that the expression āother authoritiesā is wide enough to include all authorities created by the Constitution or statute on whom the powers are conferred by Law. It is not necessary that the statutory authority should be engaged in performing the governmental or sovereign function.
Once a body is characterized an āauthorityā under Art. 12, several significant incidents invariably follow:( Jain M.P., THE INDIAN CONSTITUTIONAL LAW, Vol. I, 5th Ed., p 982)
ļ· The body becomes subject to the discipline of fundamental rights, which means that its actions and decisions can be challenged with reference to fundamental rights. ļ· The body also becomes subject to the discipline of Administrative Law.
8 Ramana Dayaram Shetty vs The International Airport ... on 4 May, 1979 AIR 1628, 1979 SCR (3) 9 Electricity Board v. Mohan Lal AIR 1967 SC 1857
