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2004 (9) TMI 694

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..... to administration and management of the temple, and the facilities made available for the pilgrims. This led to the enactment of 'The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1986' (Governor's Act No. XXXIII of 1986) which was replaced by an Act of Legislature, passed in 1988, (Act No. XVI of 1988) called 'The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 (hereinafter referred to as the '1988 Act'). A statutory Board is constituted under Section 5 of the 1988 Act, of which the Governor of Jammu & Kashmir is the ex-officio Chairman. The administration, management and governance of Shri Mata Vaishno Devi Shrine and the Shrine Fund vest in the Board, which comprises a Chairman and not more than ten members. Under Section 6 of the 1988 Act, the Board is deemed to be a body corporate and shall have perpetual succession and a common seal and by the said name the Board can sue and be sued. Under Section 14 of the 1988 Act, the Board is empowered to appoint a Chief Executive Officer and such other officers and servants as it considers necessary with such designations, pay, allowances and other conditions of service as determined from time .....

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..... ys, he would be subjected to further action as deemed appropriate. The petitioner protested against this notice and followed it up by another writ petition OWP No. 523/95 before the High Court by which he asked for various reliefs, including the relief of quashing the notice issued to him and a mandamus to the officers of the Board to refrain from interfering with his business activities. This writ petition came to be dismissed by a learned Single Judge of the High Court on 8.2.1999 holding that the writ petition was not maintainable in view of the decision of the Division Bench of the High Court in LPA No. 182 of 1992 decided on 27.1.1999. Hence, this appeal. Civil Appeal Nos. 4597-98 of 1999: The appellants in these two appeals were employees of the Board, who were holding different posts under the Board. It is the case of the appellants that, their conditions of service were unsatisfactory and they formed a trade union for collective bargaining so as to improve their conditions of service. Their trade union was registered with the Registrar of Trade Union, Jammu and Kashmir Government under registration No. 705 dated 11.12.1990. On 15.1.1991, the Registrar of Trade Union, J& .....

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..... ne merits of impugned orders of termination passed against the petitioners. Preliminary objections raised by the Appellant succeeds." The aggrieved employees are before this Court by these appeals. Special Leave Petition (Civil) No. 8192 of 2001: The petitioner was appointed as a Chowkidar on 6.10.1978 in the Dharmarth Trust and claims to have become an employee of the Shrine Board after coming into force of the Jammu & Kashmir Shri Mata Vaishno Devi Shrine Act, 1986. It is the case of the petitioner that he was employed as a Receptionist when the Board came into existence. It is his grievance that he was not being paid due salary by the Board. The petitioner filed writ petition SWP No. 663/1993 before the High Court for appropriate reliefs, which is stated to be pending. On 2.3.1998 the petitioner was served with a charge sheet levelling allegations of misconduct against him for alleged misappropriation of ₹ 20/-. An enquiry was held and a show cause notice dated 21.3.1998 was served on the petitioner to show cause why his service should not be terminated. Finally, after considering the reply, the petitioner was dismissed from service on 30.3.1998. The petitioner fi .....

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..... ding the issue as to whether the Shrine Board was "State", the High Court has applied certain tests which are erroneous, and failed to apply other tests which have now been held necessary in view of the judgment of a Bench of Seven learned Judges of this Court rendered in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. . The High Court has relied on the tests prescribed in Sabhajit Tewary v. Union of India , which has been specifically overruled in Pradeep Kumar Biswas (supra). The learned counsel for the respondents, however, maintained that the observations made in Bhuri Nath (supra) were directly relevant and applicable. On the second issue, however, learned counsel for the respondents contended that if this Court comes to the conclusion that the present appeals are not concluded by the decision in Bhuri Nath (supra) then the matters may be remitted to the High Court for deciding the tenability of the writ petitions in the light of the law laid down in Pradeep Kumar Biswas (supra). The facts in Bhuri Nath (supra) and the background in which the relevant observations in Paragraph 33 were made need to be considered in detail. As already recounted, t .....

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..... ion of the Board in order to contend that the Board is a "State-controlled Corporation". The Baridars further contended that, offerings and other properties were acquired under the 1988 Act and got vested in the controlled Corporation, viz., the Board. For their abolition, the Baridars were entitled to compensation and inasmuch as Section 19 makes no provision for compensation, the 1988 Act was unconstitutional and ultra vires the powers of the legislature. On behalf of the Board, clause (2-A) of Article 31 of the Constitution of India was emphasised, which reads as under: "(2-A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property." It was contended that the Shrine Board is not a 'controlled Corporation' and the properties and offerings vested in it are not owned or controlled by the State or their ownership is not transferred to any State controlled Corporation. It was also contended t .....

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..... observed thus in Paragraph 33: "33. In Constitutional Law of India by H.M. Seervai (3rd Edn.), Vol.II, at p. 1109 in para 30, it is stated that distinction between ordinary acquisitions where law provides full compensation and large schemes of social engineering or reform which would have to be located at from the point of view of justice to the individual as well as to the community, is harmonised by the legal view. In the afterlight of Bela Banerjee case , it is clear that the eminent lawyers (Founding Fathers of the Constitution) committed a grave error in leaving to implication what they could have clearly expressed in Article 31(2). Bela Banerjee case showed that the intention of the framers failed because it was not expressly embodied in Article 31(2). Obviously, an amendment of the Constitution is meant to change the existing law, and the 4th Amendment by excluding the challenge on the ground of adequacy of compensation was meant to change the law laid down in Bela Banerjee case that compensation under Article 31(2) meant a full and fair money equivalent. After the 4th Amendment, the word "compensation", could not mean a full and fair money equivalent, for if .....

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..... on of the High Court. All that was decided is that the Shrine Board is not a 'State controlled Corporation'. This issue, per se, is not determinative of the issue as to whether the Shrine Board is amenable to the writ jurisdiction of High Court under Article 226 of the Constitution of India. The sweep of Article 226 of the Constitution is much wider. It can be exercised against "any person or authority", including in appropriate cases "any Government". Article 12 finds its place in Part III, and reads as under: 12. Definition.- 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." Its purpose is to define the word 'State' where it occurs in Part III relating to fundamental rights. Here also, the inclusive definition takes within its fold, apart from the Government, Parliament of India and the Legislature of the States, "all local or other authorities". It is in this context, that the theory .....

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..... t Section 20 of the 1988 Act bars civil suits and adjudications under labour laws. The High Court shall, therefore, first consider the maintainability of the writ petitions under Article 226 of the Constitution of India by examining whether the Shrine Board is amenable to the writ jurisdiction of the High Court, by applying the principles and tests laid down in Pradeep Kumar Biswas case (supra). The High Court shall also consider whether any alternative remedy is available to the writ petitioners by way of civil suit or industrial adjudication. It shall be open to the High Court to take an appropriate decision thereupon, including the relegation of the parties to the appropriate remedy, if the High Court upon interpretation of the provision of Section 20 of the 1988 Act comes to the conclusion that such alternative remedy is available to the writ petitioners before it. In case the High Court takes the view that writ petitions are tenable, and that no other equally efficacious alternative remedy is available to the writ petitioners, then the High Court shall decide the writ petitions on their merits. Although, learned counsel have cited before us a large number of authorities, we co .....

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