G.S Singhvi, J.:— This appeal under Clause X of the Letters Patent is directed against order dated 29.9.1993 passed by the learned Single Judge whereby he allowed the writ petition filed by respondent-Radha Kishan Rajpal and nullified his removal from service.
2. The respondent joined service of District Red Cross Society, Hisar as Clerk in the year 1955. He was prompted as Accountant and then as Assistant Secretary. In 1979, he was transferred to newly created District Red Cross Society, Sirsa. There, he was promoted as Secretary. In 1981, he filed a suit for declaration that he was an employee of District Red Cross Society, Hisar, and as such, he could not have been transferred to District Red Cross Society, Sirsa. The same was decreed by Sub-Judge IInd Class, Sirsa vide his judgement dated 11J. 1983. The appeal filed by Kamaljit Singh, who as serving as Accountant in District Red Cross Society, Hisar was dismissed by Additional District Judge, Sirsa vide his judgment and decree dated 3.10.1986 R.S.A No. 3092 of 1985 filed by Kamaljit Singh was dismissed as withdrawn.
3. After conclusion of the afore-mentioned litigation, a departmental enquiry was instituted against the respondent on the charge of committing financial irregularities. The same culminated in the passing of order dated 17.10.1989 vide which Deputy Commissioner-cum-President, District Red Cross Society, Sirsa removed the respondent from service. He challenged the same in C.W.P No. 2056 of 1990 on the ground of non-compliance of the procedure laid down in Punjab Civil Services (Punishment and Appeal) Rules, 1952 and the rules of natural justice. In the written statement filed on behalf of the appellant, an objection was taken to the maintainability of the writ petition on the ground that Indian Red Cross Society, Haryana State Branch and District Red Cross Society, Sirsa do not fall within the definition of the ‘State’ under Article 12 of the Constitution of India. On merits, it was averred that the order of had been passed by the competent authority after complying with the statutory rules and the principles of natural justice.
4. The learned Single Judge relied on the judgments of the Supreme Court and the High Courts in Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487 : [1980 (3) SLR 467 (SC)]; Sarmukh Singh v. Indian Red Cross Society, 1985 Lab. I.C 1972; Indian Red Cross Society v. R.N Kaul, D.B Special Appeal No. 65 of 1978, decided by Rajasthan High Court; Manmohan Singh Jaitla v. Commissioner, Union Territory, Chandigarh, 1984 Supp SCC 540 : AIR 1985 SC 364 : [1985 (1) SLR 505 (SC)] and Pant Raj Sachdev v. The Indian Red Cross Society, 1987 (1) PLR 69 : [1986 (1) SLR 675 (Pb. & Hry.)] and held that the writ petition is maintainable. On merits, the learned Single Judge accepted the plea of the respondent that he had been punished without holding a proper enquiry in consonance with the rules of natural justice and that he had been denied effective opportunity of hearing.
5. We have heard learned counsel for the parties and perused the record. Although the appellant has challenged the order of the learned Single Judge on several grounds, Shri Girish Agnihotri very fairly stated that he is not in a position to persuade the Court to upset the view taken by the learned Single Judge on the merits of the enquiry held against the respondent. He, however, argued that the writ petition should be dismissed because the Indian Red Cross Society, Haryana State Branch and District Red Cross Society, Sirsa do not fall within the ambit of the expression other authorities' appearing in Article 12 of the Constitution of India. Shri Agnihotri submitted that even though the Indian Red Cross Society has been created under the Red Cross Society Act, 1920 (for short, ‘the 1920 Act’), it does not satisfy functional and financial tests laid down by the Supreme Court in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 : AIR 1975 SC 1331 : [1975 (1) SLR 605 (SC)]; Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628; Ajay Hasia v. Khalid Mujib Sehravardi, (supra); and Som Parkash Rekhi v. Union of India, (1981) 1 SCC 449 : AIR 1981 SC 212 : [1981 (1) SLR 154 (SC)] and as such, it cannot be treated as State within the meaning of Article 12 of the Constitution of India. Learned counsel also relied on the judgment of the Supreme Court in Sabhajit Tewary v. Union of India, (1975) 1 SCC 485 : AIR 1975 SC 1239 : [1975 (1) SLR 422 (SC)] in support of his argument.
6. In our opinion, there is no merit in the arguments of the learned counsel and the appeal is liable to be dismissed. The question whether a petition under Article 226 of the Constitution of India can be entertained by the High Court against a body which may not strictly fall within the scope of the expression ‘other authorities’ under Article 12 of the Constitution of India was considered by a five Judges Bench of this Court in Miss Ravneet Kaur v. The Christian Medical College, Ludhiana, (1997) 2 PLR 320 : [1997 (4) SLR 221 (Pb. & Hry.)]. After a thread-bare examination of the issue in the backdrop of various judicial precedents including the judgments of the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Survarna Jayanti Manotsav Smarak Trust v. V.R Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607 : [1990 (7) SLR 154 (SC)]; Ajay Hasia v. Khalid Mujib Sehravardi (supra), the Court laid down the following propositions
“(i) Powers of High Courts under Articles 226 of the Constitution are wider than those of the Court of King's Bench in England.
(ii) The power of the High Court is not confined to the issue of prerogative writs as initially understood in England. The procedural restrictions which had been imposed on the Courts in England do not bind the High Courts in this country. The High Courts are empowered to issue not only writs in the nature of certiorari, mandamus etc. but also orders and directions to enforce fundamental rights or for any other purpose.
(iii) The power under Article 226 of the Constitution is not confined to the enforcement of fundamental rights like the power under Article 32. Still further, the High Courts can issue writs, orders or directions even to any person or authority discharging a public duty for enforcement of the fundamental rights or for any other purpose.
(iv) The words “any person or authority” used in Article 226 do not mean only State as defined in Article 12 or statutory authorities. These cover any person or body performing a public duty.
(v) In view of the importance of ‘health’ to the community, institutions providing medical education form a distinct class. These institutions perform a public duty and supplement the State's effort. By their, affiliation to a University or any other statutory examining body, they became partners with the State. They are, thus, subject to the restrictions contained in Part III. They are bound to act in conformity with the provisions of the Indian Medical Council Act, 1956 and the rules/regulations framed by the appropriate University/body. Whenever they act unfairly, arbitrarily or violate the prohibitions contained in Part III of the Constitution or the rules and regulations framed by the University etc, their actions can be corrected by issue of a writ of certiorari or any other appropriate writ, direction or order. Similarly, if it is found that an institution has failed to carry out an obligation under the Constitution or the rules/regulations framed by an appropriate body, it can be compelled to perform its] duty by the issue of a writ of mandamus. This principle shall, however, not be attracted in case of every private school or college.
(vi) The Full Bench decisions of this Court in Pritam Singh v. State of Punjab, (1989) 84 P.L.R 530 : [1989 (1) SLR 105 (SC)] and Gurpreet Singh Sidhu v. The Panjab University, Chandigarh, (1983) 85 P.L.R 46 (F.B) : [1983 (1) SLR 220 (Pb. & Hry.)] do not contain a correct enunciation of law and are over-ruled.”
7. In Chaman Lal Gupta (dead) through legal representatives v. The Punjab State Co-operative Supplies and Marketing Federation Limited, Chandigarh - R.S.A No. 2745 of 1985 decided on 3.11.2004, another Bench of five-Judges considered the question whether the Punjab State Cooperative Supply and Marketing Federation Limited, Chandigarh (for short, ‘the Federation’), is an instrumentality/agency of the State under Article 12 of the Constitution of India. After making a reference to the judgments of the Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857 : [1967 SLR 573 (SC)]; Sabhajit Tewary v. Union of India (supra): Sukhdev Singh v. Bhagatraim Sardar Singh Raghuvanshi (supra); Ajay Hasia v. Khalid Mujib Sehravardi (supra); Tekraj Vasandi alias K.L Basandhi v. Union of India, (1988) 1 SCC 236 : AIR 1988 SC 469 : [1988 (3) SLR 560 (SC)]; Chander Mohan Khanna v. National Council of Educational Research and Training, (1991) 4 SCC 578 : [1991 (6) SLR 68 (SC)]; Mysore Papers Mills Ltd. v. The Mysore Paper Mills Officers Association, JT 2002 (1) SC 61; and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 (3) RSJ 265 : [2002 (3) SLR 433 (SC)], the Court held that Federation falls within the ambit of Article 12 of the Constitution of India. The Court also took cognizance of the fact that the Constitution Bench judgment in Sabhajit Tewary's case (supra), has been overruled by the majority of larger Bench in Pradeep Kumar's case (supra) and held that the Federation is amenable to writ jurisdiction under Article 226 of the Constitution of India.
8. In Pant Raj Sachdev v. The Indian Red Cross Society, Through the Secretary General (supra), a learned Single Judge referred to the provisions of the 1920 Act and the fact that the Red Cross Society is headed by the Governor of the State at the State Level and by the Deputy Commissioner at the District Level as also to the judgment of a Division Bench of the Rajasthan High Court in Indian Red Cross Society v. R.N Kaul (supra) and held that even if the Red Cross Society may not be ‘State’ within the meaning of Article 12, it is amenable to writ jurisdiction under Article 226 of the Constitution of India.
9. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal (supra), the majority of the Constitution Bench of the Supreme Court held that the expression “other authorities” in Article 12 will include all constitutional and other authorities upon whom powers are conferred by law. Their Lordships further held that if any body of persons is invested with the authority to issue directions, disobedience of which is punishable as a criminal offence, that would be an indication that the said authority is State.
10. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (supra), another Constitution Bench of the Supreme Court approved the ratio of Rajasthan State Electricity Board v. Mohan Lal (supra) and held that bodies like, Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation which are agencies/instrumentalities of the State fall within the expression “other authorities”. In his concurring judgment, Mathew, J. indicated the following four indicias for identifying whether a particular body or organisation can be treated as an agency or instrumentality of the State
“(1) A finding of the State financial support plus an unusual degree of control over the management and policies might lead one to characterize an opperation as State action.
(2) Another factor which might be considered is whether the operation is an important public function.
(3) The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so-closely related to a governmental function as to be classified as a government agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description then mere addition of State money would not influence the conclusion.
(4) The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?”
11. However, on the same day, the same Bench rendered another judgment in Sabhajit Tewary v. Union of India (supra), and held that the Council of Scientific and Industrial Research, which is registered under the Societies Registration Act, 1860 (for short, ‘the 1860 Act’), is not an authority within the meaning of Article 12 of the Constitution.
12. In Ramana Dayarani Shetty v. International Airport Authority of India (supra), the Supreme Court gave a wider meaning to the concept of ‘agencies and instrumentalities of the State’. Their Lordships held that even though, a corporation may be created by way of registration under the Companies Act, 1956 or the 1860 Act, it would be an instrumentality or agency of the government if it is wholly controlled by the government not only in its policy making, but also in carrying out the functions entrusted to it. Their Lordships also referred to the concept of the State's action as developed in the United States and observed
“So also a finding of extensive and unusual financial assistance plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action. Moreover, the existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected for there can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation's ties to the State. Again if the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. But this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. But the public nature of the function, if impregnated with governmental character or “tied or entwined with Government” or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference. It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provided an unfailing answer to the question whether a corporation is governmental instrumentality or agency. The Court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding to that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling.”
13. In Ajay Hasia v. Khalid Mujib Sehravardi (supra), the Supreme Court, while examining the legality of admissions made in a Medical College established and administered by a society registered under J. & K. Registration of Societies Act, 1898, observed that even though, it cannot be equated with the Government of India or of any State, the same would fall within the scope of the expression “other authorities”. After noticing the proposition laid down in Ramana Dayaram Shetty's case (supra), the Supreme Court culled out and summarized the following tests for determining as to when a corporation can be said to be an instrumentality or agency of the government
“(1) One thing is clear that if the entire share capital of the corporation is held by government, it would go a long way towards indicating that the corporation is an instrumentality or agency of government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor…… whether the corporation ‘enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government.
(6) Specifically, if a department of government is transferred to a corporation, it would be strong factor supportive of this interference of the corporation being an instrumentality or agency of government.”
14. In Som Parkash Rekhi v. Union of India (supra), the Supreme Court held that Bharat Petroleum Corporation falls within the enlarged meaning of ‘State’ under Article 12 of the Constitution.
15. In Tekraj Vasandi alias K.L Basandhi v. Union of India (supra), and Chander Mohan Khanna v. National Council of Educational Research and Training (supra), their Lordships gave a restricted meaning to the expression “other authorities”. In Basandhi's case (supra), the Supreme Court held that the Institute of Constitutional and Parliamentary Studies which is a society registered under the Societies Registration Act is neither any agency nor instrumentality of the State so as to come within the purview of ‘other authorities’ under Article 12 of the Constitution. Similarly, in Chander Mohan Khanna's case (supra), the Supreme Court held that National Council of Educational Research and Training which was registered as society, was largely an autonomous body, its activities were not related to the governmental functions and that the government's control was confined only to the proper utilisation of the grant and, therefore, it was not covered by the definition of the ‘State’.
16. However, in the recent past, the Supreme Court has reiterated and re-affirmed the broader meaning given to the expression “other authorities” in Sukhdev Singh's case (supra), Ramana Dayaram Shetty's case (supra) and Ajay Hasia's case (supra). In Mysore Papers Mills Ltd. v. The Mysore Paper Mills Officers Association (supra), it was held that a company which was substantially financed and controlled by the government and managed by the Board of Directors nominated and removed at the instance of the government is an authority within the meaning of Article 12 of the Constitution.
17. The decision of Sabhajit Tewary's case (supra) was distinguished in Ramana Dayaram Shetty's case (supra) in the following words:—
“The Court no doubt took the view on the basis of facts relevant to the constitution and functioning of the council that it was not an authority, but we do not find any discussion in this case as to what are the features which must be present before a cooperation can be regarded as an ‘authority’ within the meaning of Article 12. This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an ‘authority’. If at all any test can be gleaned from the decision, it is whether the corporation is ‘really’ an agency of the government.
The Court seemed to hold on the facts that the council was not an agency of the government and was, therefore, not an ‘authority’.”
18. In Som Parkash Rekhi's case (supra), the Supreme Court referred to Sabhajit Tewary's case (supra) and observed
“The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be ‘State’ under part-III but not under part-XIV. Ray, C.J, rejected the argument that merely because the prime minister was the president or that the other members were appointed or removed by government did not make the society a ‘State’. With great respect, we agree that in the absence of the other features elaborated in Air Port Authority case, (1979) 3 SCC 489 : AIR 1979 SC 1628 the composition of the government body alone may not be decisive. The laconic discussion and the limited ratio in Tewary, 1975 (3) SCR 616 hardly help] either side here.”
19. The correctness of the ratio of Sabhajit Tewary's case (supra) decided by the Constitution Bench was considered by seven-Judges Bench of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (supra). By majority judgment, the Supreme Court ruled that even though, a body may be registered, under the Societies Registration Act, it would fall within the definition of the ‘State’ if the government has sufficient financial and administrative control over its functioning and it may be discharging a governmental function. Paragraph 40 of the majority judgment, which contains a synthesis of various judicial precedents on the subject, reads as under
“The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, exhypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be-whether in the light of the cumulative facts as [established, the body is financially, functionally and administratively dominated by or under the control of the government. Such control must be particular to be body in question and must be pervasive. If this is found then the body is a State within article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it Would not serve to make the body a State.”
20. The majority over-ruled the judgment of Sabhajit Tewary's case (supra) and held that the main object of the society, namely, to foster planned industrial development in the country was fundamental to the governance of the country and keeping in view the control exercised by the government, the same was liable to be treated as an instrumentality of the State for the purposes of the expression “other authorities” appealing in Article 12 of the Constitution of India.
21. We respectfully agree with the views expressed by learned Single Judge in Pant Raj Sachdev's case (supra) and hold that a writ under Article 226 of the Constitution of India is maintainable against the India Red Cross Society and its Branches and the learned Single Judge did not commit any illegality by entertaining the writ petition filed by the respondent. No other point has been argued.
22. In the result, the appeal is dismissed. However, the parties are left to bear their own costs. Appeal dismissed.