9911796707
TMI Blog2004 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 decided on 13.4.1993], the writ petition filed by the petitioner in the High Court was dismissed as not maintainable against which the petitioner has preferred the present appeal. After passing of the impugned judgments by the High Court, the scope of Article 12 came up for consideration before a Constitution Bench comprising seven judges of this Court in the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology [2002 (5) SCC 111]. The seven judges Constitution Bench in the case of Pradeep Kumar Biswas (supra) overruled the decision of five judges Constitution Bench in the case of Sabhajit Tewary vs. Union of India [1975 (1) SCC 485. By explaining and relying on Constitution Bench decision in the case of Ajay Hasia vs. Khalid Mujid Sehravardi [1981 (1) SCC 722] by a majority of five against two this Court has laid down a multiple test for determining whether a particular Corporation or Body can be held to be included within the definition of "State" under Article 12 of the Constitution. Learned Sister Ruma Pal J., expressing the opinion of majority of Judges in the case of Pradeep Kumar Biswas (supra) on re-examination of all previous cases decided by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. ............ The tests laid down in the case of Ajay Hasia (supra) are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in the positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the court of brooding presence of the Government or deep and pervasive control of the Government so as to hold it to be an instrumentality or agency of the State. In the background of the views expressed by majority and mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. vii) Deputy Secretary, Welfare Scheme, Chief Secretary's Branch ...... Secretary To fulfil the above object contained in the letter of the Chief Secretary which was addressed to all departments of the State, a society was formed and registered under the Societies Registration Act, 1860 with the name of the society as Uttar Pradesh Rajya Karamchari Kalyan Nigam. In the Memorandum of Association of the Corporation in clause(3), objects of the Corporation are stated to be as under :- i) To carry on and promote activities aimed at the welfare of the employees of the State Government and to equip itself with capital, credit, means, resources and technical and managerial assistance for this purpose. ii) To provide and help for the welfare of the employees, the places of interests, recreation, sports and medical attendance and to subscribe money to or for, or otherwise help any other charitable and benevolent object which is in the opinion of the Corporation useful to the employees. iii) To establish and run stores, shops, canteens for carrying on retail business in essential commodities of daily use and other consumer goods without profit motive in such localities within the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Corporation or the Board who are members by virtue of their offices which they hold in the State shall stand terminated when they cease to hold the office in the State and their successors to that office shall become members. The names of the members and office bearers of the governing body are as under :- 1. Shri K. K. Dass, Chief Secretary to Govt. Ex officio Board Chairman of the Board 2. Shri V. M. Bhide Commissioner & Secretary, Finance Deptt. UP Govt. Ex officio Director 3. Shri H. C. Saxena, Secretary, Industries Deptt. Ex officio Director 4. Shri Bhagwant Singh, Commissioner & Secretary, P&C Deptt. UP Govt. Ex. Officio Director 5. Shri B. B. Malik, Director of Industries, UP Ex officio Director 6. Shri B. L. Chak, Secretary, Appt. & G.A.D. Ex officio Director 7. Shri S. B. Saran, Dy. Secretary, Chief Secretaries, Branch, UP Govt. Ex officio Exe. Director of the Board The most important is clause 4 of the Memorandum of Association of the Corporation which reads thus:- "If on the winding up or dissolution of the Corporation there shall remain, after the satisfaction of its debts and liabilities, any prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed additional documents in this appeal containing various grants annually made from time to time by the State Government to the Corporation. Letter dated 14.1.1992 of Joint Secretary, Govt. of U.P. to the Executive Director of the Corporation informed that additional grant of 50 lacs was granted for the financial year 1991-92 for expenditure of 100% amount on the salary allowances of employees working in the Headquarters of the Corporation and 50% of the amount spent on salaries and allowances of employees working at the canteens. By letter dated 15.9.1994 the State Government granted sanction for revival of the post of Assistant Director earlier sanctioned in the year 1980 for the Corporation. By letter 6.9.1997, the earlier grant of 75% in the year 1996-97 was increased to cent percent to meet the expenditure of salaries and allowances of employees of canteens run by the Corporation. By letter dated 16.12.1999, the Secretary of Government of Uttar Pradesh wrote to the Commissioner, Food and Supplies Deptt. And the Executive Director of the Corporation that to solve the problem of pending bills of the Corporation with the Secretariat Administrative Department, against the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p and pervasive as described the minority view in Pradeep Kumar Biswas case (supra) so as to satisfy the court 'of brooding presence of the government' on the activities of the Corporation. We may, therefore, briefly indicate the evidence produced by the parties relevant to the multiple test to determine the composition and character of the Corporation :- Administrative Control :- The Corporation was formed by a decision of the government with the object of providing articles of daily requirement to the government servants at reasonable rates. In this respect, the contents of the minutes of the meeting held on 1.10.1971 in the Chairmanship of Minister of Food for considering the note prepared by the Cabinet of the Government with Chief Secretary, Commissioner and Secretary to Food and Commissioner and Secretary, Finance is revealing. In the course of meeting, the Chief Secretary suggested that the finances of the Corporation can be raised by raising share capital to be sold to the government employees. The Food Secretary thereupon objected to the proposal saying that the Corporation is a government organization and raising of share capital would change its character from governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 10 crores and although the amount is returnable but its expenditure and reimbursement is to be ensured by Secretariat Administrative Department of the State of U.P. In the letter dated 16.9.1999, working capital of 10 cores is provided to the Corporation with the responsibility placed on the Food Department for its return. Admittedly, therefore, there is total financial support to the Corporation of the State of U.P. although it is expected that the Corporation will generate sufficient amount to be able to run on 'no profit no loss' basis. Functional Control :- There is complete functional control of the Corporation by the State which is evident from the fact that Executive Officers of the State are ex officio members and office bearers of the Corporation. From the minutes of the meeting held in the Chairmanship of Minister for Food with Commissioner and Secretary of Food and Civil Supplies Department, there is an indication that the government has taken responsibility to finance and fund the Corporation. The proposal, therefore, to raise share capital was declined. For auditing the accounts of the Corporation, services of Chief Finance Officer of the State were made availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised and controlled by the various departmental authorities of the State particularly the Department of Food and Civil Supplies. The multiple test indicated to be applied both by the majority and minority view in Pradeep Kumar Biswas (supra) is fully satisfied in the present case for recording a conclusion by us that the Corporation is covered as an 'agency and instrumentality of the State' in the definition of 'State' under Article 12 of the Constitution. It is, therefore, amenable to the writ petition of the High Court under Article 226 of the Constitution. Before parting with the case, it is necessary for us to clarify that even though a body, entity or Corporation is held to be a 'State' within the definition of Article 12 of the Constitution what relief to the aggrieved person or employee of such a body or entity is to be granted is a subject matter in each case for the court to determine on the basis of the structure of that society and also its financial capability and viability. The subject of denial or grant of relief partially or fully has to be decided in each particular case by the court dealing with the grievances brought by an aggrieved person against the bodies cove ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
