Central Government - Key Concerns submission

HOW SOME OF THE JUDGES OF ODISHA HIGH COURT GIVEN JUDGEMENT NOT AS PER THE LAW OF THE LAND OR MERIT OF THE WRIT/CASE BUT PURELY ON CASTE BASIS AND WITH OTHER CONSIDERATION.BELOW GIVEN JUDICIAL ORDER AND JUDGEMENT OF THE JUDGE. W.P.(C) NO. 2384 OF 2003 02.07.2014 Heard Mr.M.R. Mohanty-2, learned counsel for the petitioner and Mr. J.K. Tripathy, learned counsel for opposite parties. Both the counsels have addressed on the question of maintainability of the writ application before this Court. Mr.M.R. Mohanty-2, learned counsel for the petitioner states that the writ petition was maintainable by the time it was filed because the state has a control over the institution and during pendency of the writ petition, a change has taken place but that will not ultimately affect the jurisdiction of the Court. Thereafter, he has relied upon the judgment of the Calcutta High Court in Ashok Kumar Gupta and others v. Union of India, AIR 2007 Cal. 195 . Mr. J.K. Tripahty, learned Senior Counsel appearing for opposite parties strenuously urged that even by the time the writ petition was filed, the same is not maintainable reason being the IDC had only 86.97 % share. Therefore, there was no Government control over the Management itself. Since there is non-availability of the pervasive control, the writ petition at the stage of filing, is not maintainable. He has relied upon the judgment of the apex Court in Balmer Lawrie & Co. Ltd. & Ors. Vrs. Partha Sarathi Sen Roy & Ors. 2013 AIR SCW 1365. He has specifically referred to paragraph 17 and urged that since the petitioner was neither a government employee nor his services has been placed under the Company, and even there is control by the IDC that itself ipso facto cannot invoke the jurisdiction under Article 226 of the Constitution of India. Therefore, by the time the writ petition was filed, this Court had no jurisdiction to entertain the same. At this juncture, both the parties are called upon to produce the constitution of the Company indicating whether there is a Government Control over the Company by furnishing the details of the Board of Management. Mr. M.R. Mohanty-2, learned counsel for the petitioner wants some time to make a research regarding pervasive control of the State over the Company and regarding maintainability of the writ petition. Call this matter two weeks after. Dr. B.R. Sarangi, J. W.P.(C) NO.2384 of 2003 21.10.2014 Heard Mr.M.R.Mohanty-2, learned counsel for the petitioner and Mr.J.K.Tripathy, learned Sr.Counsel for the opposite parties. Mr.M.R.Mohanty-2, learned counsel for the petitioner referring to the affidavit filed on 30.7.2014 and the documents incorporated therein vide Annexures-37 and 38, strenuously urged that the State has got pervasive control over IDCOL Cement and thus, it comes within the meaning of Stateas envisaged under law. Mr.J.K.Tripathy, learned Sr.Counsel for the opposite parties strenuously disputes the same and states that IDCOL cement is a subsidiary company of IDC, which is a fully owned Government company and only 86% share is being invested by IDC with IDCOL Cement and therefore, there is no pervasive control of the State agency over IDCOL cement. He further states that it is the Board of Directors, which has got control over the management. In order to ascertain who the Board of Directors of the Company is, Mr.Tripathy, learned Sr.Counsel is called upon to produce the document showing constitution of the Board of Directors of the Company. Call this matter next week. Dr. B.R. Sarangi, J. W.P.(C) NO.2384 of 2003 10.11.2014 Heard Mr.M.R.Mohanty-2, learned counsel for the petitioner and Mr.B.P.Tripathy, learned Counsel for the opposite parties. Mr.Tripathy, learned Counsel for the opposite parties submits that he has sought instruction from the opposite parties, but he has not received any such instruction with regard to the constitution of the Board of Directors. Mr.Mohanty, learned counsel for the petitioner files an affidavit in Court today after serving a copy of the same on the learned counsel for the opposite parties. Learned counsel for the opposite parties wants to verify the same and if necessary, would file an affidavit on the next date. Let the State files an affidavit with regard to the constitution of the Board of Directors of IDC on the next date. Copy of the said affidavit be also served on the learned counsel for the State. Call this matter next week. Dr. B.R. Sarangi, J. ORISSA HIGH COURT: CUTTACK W.P.(C) No. 2384 of 2003 In the matter of an application under Articles 226 & 227 of the Constitution of India. ---------- Braja Bandhu Behera ......... Petitioner -versus- Chairman-cum-Managing ......... Opp. Parties Director, Industrial Development Corporation Limited, Orissa and others For Petitioner : M/s M.R. Mohanty-2, B.K. Mohanty, G.K. Nayak. For Opp.Parties : M/s. J.K.Tripathy, Sr. Counsel, P.K.Chand,D.Satpathy, J.Mohanty. (Opp.1 & 2) PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 19.01.2015 | Date of judgment: 24.02.2015 Dr. B.R.Sarangi, J. The petitioner, who was working as a Manager (Sales) under IDCOL Cement (ICL in short) a fully owned subsidiary of opposite party no.2, Industrial Development Corporation of Odisha Ltd. (hereinafter referred to „IDCOL‟)-opposite party no.1 has filed this application challenging the order of punishment of dismissal from service dated 29.4.2003 vide Annexure-36 published in a newspaper and further prays for quashing of the proceeding pending before the Enquiry Officer dated 11.02.2003 including Annexure-34 and grant of all consequential service benefits as due admissible to him in accordance with law. 2. The short fact of the case in hand is that the petitioner while working as Zonal Manager of Balasore and Bhubaneswar of the Industrial Development Corporation of Orissa Limited and looking after the management of the corporation, was posted and transferred as the Manager (Sales) IDCOL Cement Ltd., Bargarh. Pending drawal of the disciplinary proceeding, he was placed under suspension on 11.10.2002 vide Annexure-1 fixing headquarter at Bargarh. Thereafter he was served with the charge on 16.10.2002 alleging misconduct under Clause-4 of the Conduct Rules of the Organization containing the following charges: i. Neglect of work ii. Theft, fraud and dishonesty in connection with the business of the company. iii. Wilful insubordination/disobedience to lawful and reasonable order of superior iv. Commission of any act subversive of discipline v. Acting in a manner prejudicial to the interest of the company. 3. The petitioner was called upon to give his explanation to the said charges within a period of 15 days of receipt of the said letter. The petitioner submitted his preliminary explanation on 25.10.2002 and also sought for supply of documents as per the list for submission of detail show cause and also requested vide letter dated 18.10.2002 to fix up his headquarter at Bhubaneswar instead of Bargarh. Without supplying the documents, he was directed to seek the records from the concerned authority. Therefore, the petitioner submitted his explanation on 20.11.2002 in absence of documents sought for by him against the charge denying the allegations. On 6.12.2002 vide Annexure-8 the Corporation decided to hold a domestic inquiry and appointed Sri R.N. Debata, Advocate as Inquiry Officer and Sri P.K. Das, Manager (P&A) IDCOL as Presenting Officer. The inquiry officer conducted the inquiry fixing the date of inquiry to 26.12.2002 at the Transit House of H.I.W. Ltd., Hirakud, which is at a distance of 60 k.m. from Bargarh i.e. the Headquarter of the petitioner. Though there was a direction for payment of subsistence allowance but the authority did not pay the same and no provision was made to pay the T.A. and D.A. for attending the inquiry. The inquiry officer proceeded with the inquiry knowing fully well that the documents asked for by the petitioner had not been supplied to him. On 11.1.2003, due to illness of the petitioner‟s wife, he made a representation before the authorities requesting for headquarters leaving permission and intimate the same to the inquiry officer. But the authorities did not consider the same. Though on 11.2.2003 the petitioner made a representation to the Presenting Officer with a list of witnesses and prayed to make available those officials for examination as defence witnesses, but the same has not been taken into consideration by the authorities. Therefore, he made another representation on 13.02.2003 requesting the inquiry officer to give him reasonable time, at least 15 days, to submit his written explanation in his defence. On 13.02.2003, he also filed another representation for sanction of subsistence allowance and change of headquarters. When that representation was pending, the petitioner suddenly fell ill suffering from Hypertension, Coronary and Artery disease and remained under treatment at Capital Hospital, Bhubaneswar. Therefore, he could not move from Bhubaneswar to Hirakud either by road or by Train as he had been advised by the Doctor to take complete rest. In spite of the illness of the petitioner and advise of doctor for one month complete rest, the inquiry officer adjourned the enquiry from 18.02.2003 to 23.02.2003 and subsequently to 1.3.2003 and lastly to 8.3.2003 holding that the inquiry is closed directing the petitioner to remain present on 8.3.2003. On 5.3.2003, the petitioner submitted another representation before the inquiry officer for review of the order dated 1.3.2003 and for adjournment of the inquiry fixed on 8.3.2003 and further prayed for supply of relevant documents but without affording opportunity and supplying the documents, the inquiry officer concluded the proceeding without following the principles of natural justice. After rejecting the representation filed by the petitioner on 5.3.2003, the inquiry officer prepared a questionnaire under Rule 6 (16) containing 37 questions on the basis of materials available to be answered by the petitioner and posted the inquiry to 11.3.2003 at 3.00 P.M. at the same venue. The petitioner could not appear on 11.3.2003, therefore the inquiry officer directed both the P.O. and the petitioner to submit their written argument under Rule 6(17) on 14.3.2003. On 12.3.2003, since the petitioner was not cured from his ailments, he requested the inquiry officer for adjournment of the case but the inquiry officer on 14.3.2003 closed the inquiry and reserved the report. On 31.3.2003 a notice was published but the same has not been responded by the petitioner. Therefore, by publishing the notice in daily „Sambad‟ on 5.4.2003 punishment of dismissal was imposed on the petitioner. The petitioner assailing such order of punishment imposed against him on the ground of non- compliance of the principles of natural justice, has approached this Court by filing the present writ petition. 4. The opposite parties entered appearance pursuant to the notice issued by this Court and raised preliminary objection with regard to maintainability of the writ petition and also refuted the allegations made with regard to non-compliance of principles of natural justice during process of inquiry conducted by the inquiry officer and justified the action of the authority dismissing the the petitioner from services. In course of hearing, request has been made to the Court by the opposite parties to decide the question of maintainability of the writ petition as a preliminary issue before going to merits of the case. 5. Considering the contention raised by the parties, the question of maintainability of the writ petition has been taken as a preliminary issue and the matter has been heard at length giving opportunity to the parties to substantiate their contention in accordance with law vide order dated 02.07.2014 by recording the contentions raised by the respective parties. 6. Mr. M.R. Mohanty-2, learned counsel for the petitioner strenuously urged that the writ petition is maintainable before this Court because by the time the writ petition was filed, the State had control over the institution and during pendency of the writ petition a change has taken place but that will not affect to invoke the jurisdiction of this Court. He also urged that the shares/stakes of the opposite party no.2 held by opposite party no.1 has been transferred in favour of M/s ACC Cement (now opposite party no.2) during pendency of the writ petition. Order of dismissal was passed by the CMD, IDCOL notwithstanding the fact that petitioner was an employee of the opposite party no.2, which is a separate body/company. In order to substantiate his contention with regard to maintainability of the writ petition, he relied upon the judgment in Ashok Kumar Gupta and others V. Union of India and others, AIR 2007 Calcutta 195. 7. Per contra, Mr. J.K. Tripathy, learned Sr. Counsel appearing for the opposite parties strenuously urged that even by the time the writ petition was filed, the same is not maintainable reason being the IDCOL had only 86.79% shares, therefore there was no Government control over the management itself. In absence of any pervasive control, the writ petition at the stage of filing is not maintainable. He further urged that the petitioner was neither a government employee nor his services have been placed under the company and even if there is control by the IDCOL that ipso facto cannot entitle the petitioner to invoke the extra ordinary jurisdiction under Article 226 of the Constitution of India. He has also relied upon the provisions of memorandum and articles of association of IDCOL and stated that the writ petition is not maintainable against the IDCOL as the same is not a „State‟ as contemplated under Article 12 of the Constitution of India. Similarly, ACC the purchaser of the cement factory of opposite party no.2 and now termed as Hirakud Cement Works, which is completely a private entity is also not a „State‟ under Article 12 of the Constitution of India. The opposite party no.2 which was an unit of IDC became a separate and distinct limited company namely IDCOL Cement Ltd. w.e.f. 31.3.1993. Though such fact has been indicated in counter affidavit on 5.7.2006, such fact has never been refuted as it is admitted position based on official records. The IDCOL Cement Ltd. was registered under Companies Act, 1956 having its own Board of Directors. Therefore, it is not a government company/corporation and the State Government does not have any say in the matter of the functioning, finance, administration, employment/non-employment of the employees of the company. It is further urged that the petitioner being not a government servant, the disciplinary proceeding/action against a government employee by the State or Central Government, as the case may be, could only be amenable to the writ jurisdiction under Articles 226 and 227 of the Constitution of India. It is stated that the juristic entity may be an „authority‟ and therefore „State‟ within the meaning of Article 12, it may not be elevated to the position of „State‟ for the purpose of Articles 309, 310 and 311 which find a place in Part-XIV. The definition of „State‟ in Article 12 which includes an „authority‟ within the territory of India or under the control of the government of India is limited in its application only to Part-III and by virtue of Article 36 to Part-IV, it does not extend to the other provisions of the Constitution and hence a juristic entity which may be „State‟ for the purpose of Part-III and IV would not be so for the purpose of Part-XIV or any other provision of the Constitution. In order to substantiate his contention he relied upon the judgments in Balmer Lawrie & Co. Ltd. and others v. Partha Sarathi Sen Roy and others, 2013 AIR SCW 1365, Pradeep Kumar Biswas v. Indian Institute of Chemical Technology and others, (2002) 5 SCC 111, G. Bssi Reddy etc. v. International Crops Research Institute and another, AIR 2003 SC 1764, Ajay Hasia and others v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722, Siba Kishore Pattnaik v. Chief Engineer, Paradip Port Trust and another, 1992 LIC 2012, Ashok Kumar Gupta and others V. Union of India and others, 2009 (120) FLR 273 (CAL HC). 8. Considering the above mentioned contention raised by the respective parties and on going through the preliminary objection raised regarding maintainability of the writ petition in view of the status of the opposite parties, the issue relating to the maintainability should be decided first. Therefore, only point is to be decided at this stage is that whether the writ petition at the instance of the petitioner is maintainable or not. 9. The opposite party no.2, which is a subsidiary of IDC, a Government owned company seems to be a government company or an authority within the meaning of Article 12 of the Constitution of India in view of the sale made in favour of ACC company. Mr. M.R. Mohanty-2, learned counsel for the petitioner strenuously urged that while the petitioner was continuing in service this change had not occurred. Therefore the status of the employee namely the petitioner herein remains as it is in erstwhile government company. Therefore, the case of the petitioner has to be decided on the basis of the law and status of the company available by the time the action taken against him not on the basis of the subsequent event. It is further urged that since the erstwhile government company was discharging the public and statutory duties, even if there is cessation of status duty, privatization/disinvestment and transfer of shares to private hands, it will not debar the petitioner to claim his benefit as the subsequent purchaser takes the liability of the previous company. It is stated that the proceeding which is maintainable on the date of institution does not become non-maintainable because of change of law unless such change expressly makes it non-maintainable and similarly a proceeding non-maintainable on the date of its institution cannot become maintainable because of subsequent change of law unless the statues clearly provides for such consequences. Therefore, by the time the case was instituted, the opposite party no.2 was a subsidiary of fully government owned company. Therefore, even if there is subsequent transfer, the status cannot be changed. His contentions are based on the law laid down by the Culcatta High Court in Ashok Kumar Gupta case (supra). 10. Mr. J.K. Tripathy, learned senior counsel appearing for the opposite parties strenuously urged that the contention raised by learned counsel for the petitioner has to be tested on the touch stone of the law laid down by the apex Court in Ajay Hasia case (supra) and catena of decisions and stated that opposite party no.2 (ICL) was completely a limited private company and does not come within the meaning of „State‟ as per law laid by the apex Court. Except the IDC being the majority share holder of ICL, its nominee, used to be its Managing Director holds the position of the Chairman-cum-Managing Director of ICL which is incorporated in the memorandum of article of association of ICL as the same was existing and does not confirm to the cumulative effect of the required ingredients enumerated in the aforesaid decisions. Therefore, the petitioner has not brought any material so as to bring opposite party no.2 within the meaning of „State‟ as contemplated under Article-12 of the Constitution of India. 11. Considering the above mentioned contentions, let me now come to the question of law to be considered with regard to the maintainability: a) In Ajay Hasia (supra) the Constitution Bench summarized the relevant tests gathered from the decision in R.D. Shetty for determining whether an entity is a „State‟ or "instrumentality of the State" as follows: (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 indicting that the corporation is an instrumentality or agency or 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 the 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 of public importance and closely related to governmental functions, it would be a relevant factor in classified the corporation as a instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. " It was held in Ajay Hasia that if on consideration of the relevant factors, it is found that the Corporation is an instrumentality or agency of Government, it would as pointed out in the International Airport Authority' case, be an „authority‟ & therefore „State‟ within the meaning of the expression in Article 12. The same view has also been taken into consideration by the Apex Court in U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840. The tests, which have been determined in Ajay Hasia (supra) are also held not rigid set of principles so that a body falling within any one of them must be considered to be „State‟. The question in case would be: whether on facts, the body is financially, functionally and administratively dominated by or under the control of Government and such control must be particular to that body and must be pervasive. Therefore, the decision in Sabhajit Tewary V. Union of India and others, AIR 1975 SC 1329 has been overruled by the 7 Judge Bench judgment of the apex Court in Pradip Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. The apex Court while over-ruling Sabhajit Tewary (supra) held as follows: "(1) simply, by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of " other authorities" in Article 12. To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to the public. Further, the statute creating the entity should have been vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs or other people- their rights, duties, liabilities or other legal relations. It created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavor and clear indicia of power- constitutional or statutory, and its potential or capability to act to 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. Tests 1, 2 and 4 in Ajay Hasia enable determination of governmental ownership or control. Tests 3, 5 and 6 are "functional" tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Therefore, the question whether an entity is an "authority" cannot be answered by applying Ajay Hasia tests. (2) The tests laid down in Ajaya Hasia case 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." b) If the Society is an „authority‟ and therefore, "State" within the meaning of „Article 12, it must follow that it is subject to the constitutional obligation under Article 14.The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to- make any detailed reference to them and it is sufficient to state that the content and reach of Article-14 must be confused with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; (ii) that the differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. Reference can also be made to other judgments of the apex Court in Gulam Abbas & Ors vs State Of U.P. & Ors AIR 1981 SC 2198, Som Prakash v. Union of India, AIR 1981 SC 212. But all these questions have been considered by the Constitution Bench of the apex Court in Ajay Hasia v. Khalid Mujib Sehravardi and others, AIR 1981 SC 487. In Tekraj Vasandi alias Basandi v. Union of India , AIR 1988 SC 469 (paragraphs 17-A and 20), with the approval of the observations of Justice Shah in Uajm Bai case, it is held that the expression „authority‟ in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed. But in paragraph 20 the Court observed as follows: "In a Welfare State, as has been pointed out on more than one occasion by this Court, Governmental control is very pervasive and in fact touches all aspects of social existence in the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into agency or instrumentality of the State. That obviously would not serve the purpose and may be far from reality." In Chandra Mohan v. NCERT, AIR 1992 SC 76, in paragraph-3, the apex Court held as follows: "It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as „State‟ under Art.12. The State control, however, vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body and rendering of an important public service being the obligatory functions of the State may largely point out that the body is „State‟." c) The definition of „State‟ is not confined to Governmental function and the legislature but extends to any action administrative (whether statutory or non-statutory), judicial or quasi judicial, which may be brought within the fold of State action being the action, which violates fundamental rights. It appears that prima facie protection against infraction of Article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore, be sustained against the society only if the society can be shown to be State for the purpose of Article 14. The „State‟ is defined in Article 12 to include inter alia the Government of India and the Government 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 and the question therefore is whether the Society can be said to be „State‟ within the meaning of this definition. Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression of "other authorities" if it is to fall within the definition of „State‟. Therefore, the question is what are "other authorities" contemplated in the definition of „State‟ in Article 12. While considering this question, it is necessary to bear in mind that an authority falling within the expression "other authorities" is, by reason of its inclusion within the definition of „State‟ in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental Rights enshrined in Part III of the Constitution. 12. In Balmer Lawrie & Co. Ltd. and others case (supra), taking into consideration the above referred judgments in paragraph-17, the apex Court stated as follows: "17.In order to determine whether an authority is amenable to writ jurisdiction except in the case of habeas corpus or quo warranto, it must be examined, whether the company/corporation is an instrumentality or an agency of the State, and if the same carries on business for the benefit of the public; whether the entire share capital of the company is held by the government; whether its administration is in the hands of a Board of Directors appointed by the government; and even if the Board of Directors has been appointed by the government, whether it is completely free from governmental control in the discharge of its functions; whether the company enjoys monopoly status; and whether there exists within the company, deep and pervasive State control. The other factors that may be considered are whether the functions carried out by the company/corporation are closely related to governmental functions, or whether a department of government has been transferred to the company/corporation, and the question in each case, would be whether in light of the cumulative facts as established, the company is financially, functionally and administratively under the control of the government. In the event that the Government provides financial support to a company, but does not retain any control/watch over how it is spent, then the same would not fall within the ambit of exercising deep and pervasive control. Such control must be particular to the body in question, and not general in nature. It must also be deep and pervasive. The control should not therefore, be merely regulatory. 13. In Balmer Lawrie & Co. Ltd. and others case reference has been made to numerous reported decisions of the apex Court including the reported decision of the Constitution Bench consisting of Seven Judges in (Pradeep Kumar Biswas) case (supra) in which the law has been settled as per the majority view of five Judges of the Court. In paragraph-40 of the said judgment, as follows: "40. 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, ex hypothesi, 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 the 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." 14. The above law of the Constitution Bench, been reiterated in the case of G. Bassi Readdy v. International Crops Research Institute and ors., AIR 2003 SC 1764 in Paragraphs-25, 26 and 27, which read as follows: "25. A writ under Art. 226 lies only when the petitioner establishes that his or her fundamental right or some other legal right has been infringed (Calcutta Gas Co. v. State of W. B., AIR 1962 SC 1044, 1047-1048).The claim as made by the appellant in his writ petition is founded on Arts. 14 and 16. The claim would not be maintainable against ICRISAT unless ICRISAT were a 'State' or authority within the meaning of Art. 12.The tests for determining whether an organization is either, has been recently considered by a Constitution Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 at p. 134 in which we said : "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 the 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". 26. The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Government's financial contribution to ICRISAT is minimal. Its participation in ICRISAT's administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State or other authority as defined in Art. 12 of the Constitution. 27. It is true that a writ under Art. 226 also lies against a 'person' for "any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would according to well established principles issue." 15. Taking into account the law laid down by the apex Court, there is no dispute that opposite party no.2 being a limited private company and none of the ingredients enumerated in the above cited decisions, exits much less, the cumulative effect thereof, so as to bring it within the fold of definition of „State‟ as laid down by the apex Court except that the IDC being the majority share holder of ICL, its nominee, used to be its Managing Director holds the position of the Chairman- cum-Managing Director of ICL which is incorporated in the memorandum of article of association of ICL as the same was existing and then does not confirm to the cumulative effect of the required ingredients enumerated in the aforesaid cases (supra). Nothing has been brought to the notice of the Court that the opposite party no.2 is coming within the meaning of „State‟ as contemplated under Article-12 of the Constitution of India conforming to the requirements as discussed above by the apex Court. 16. Since the petitioner has admitted that he is not a State Government employee, question of consideration of the applicability of meaning of „State‟ expressed under Article 12 of the Constitution of India does not require any consideration at this stage. 17. The contention raised by Mr. M.R. Mohanty, learned counsel for the petitioner is that lifting the veil if ultimately reveals that the State functionary under whom opposite party no.2 is functioning has got the same control then the writ petition is amenable to writ jurisdiction. To such contention this Court is of the considered opinion that even after lifting the veil, it appears that except CMD of IDC happens to be the CMD of opposite party no.2, no other ingredient as mentioned above is satisfied. That ipso facto cannot give a status of „State‟ or other authority as expressed under Article 12 of the Constitution of India to the petitioner‟s employer so as to make it amenable to the writ jurisdiction of the Court. Admittedly, it is a company which is registered under the Companies Act. Reliance placed on the judgment of the Calcutta High Court in the case of Ashok Kumar Gupta (supra) is not applicable to the present context and the same itself is a distinguishable one because the appeal was pending before the apex Court with regard to the status of the organization. Therefore, the appeal being a continuation of the proceeding, that itself cannot take away the rights of the employees to invoke the jurisdiction of the Court. In paragraph-32 of the said judgment, it states as follows:- "32. It is nobody‟s case that the writ petition was not maintainable when it was filed. The cause of action for filing the writ petition crystallized at a point of time when the respondent authority was, admittedly, subject to the writ jurisdiction. The said cause of action confers a vested right to the writ petitioners to have their grievances adjudicated in a writ proceeding. No one can contend that the writ petitioners have brought about the present situation by their conduct. The change of circumstances is not attributable to the writ petitioners." 18. The ratio of the aforesaid case is not applicable to the present context in view of the fact that at the very initiation of the case itself, no writ lies against the opposite party no.2. Even subsequent action being taken by the share/stakes in favour of the private organization, namely, ACC Limited will not change the status of the petitioner because on the date of filing of the writ petition the petitioner was an employee of IDCOL Cement Limited, the private organization. Therefore, even at the time of filing of the writ petition and subsequent thereto, the writ petition as against IDCOL Cement is not maintainable as the ratio of Ashok Kumar Gupta (supra) stands on different footing than that of present context. Therefore, this Court is of the considered opinion that the writ petition filed by the petitioner seeking relief against opposite party no.2 cannot be sustained in the eye of law, as it is not maintainable. 19. Accordingly, the writ petition is dismissed. However, no order to costs. .................................... Dr.B.R.Sarangi, J. Orissa High Court, Cuttack The 24th February, 2015/Jagdev Humble appeal to President of India/Prime Minister of India. Sir, He Dr.B.R.Sarangi, J. is the newly appointed judge of Odisha High Court. When the case came up for hearing in more than seven division benches (senior judges) of Odisha High court and the senior judges admitted the Writ and heard in length and(on 17.06.2003 Just.B.K.Panigrahy and Just Ch.P.K.Misra(Let the copies of the writ petition be served upon the opp.parties 1 to 3 by Regd.Post with A.D.let the matter appear on 14.07.2003:22.07.2003 remind for S.R. and list this matter immediately after receipt of the same) Just P.K.Tripathy & Just.Ch.P.K.Misra, passed order (this is an application for inclusion of the State of Orissa as Opp.No.4 in the writ petition: prayed is allowed, let consolidated cause title of the writ be filed by 10/04/2006.Misc.case is disposed off)Just.Bimal Das & Just.B.P.Ray heard the argument from both the parties and given 70% judgement but god knows they kept is Heard in part later Just.B.P.Ray transferred to Karal High Court, Just L.K.Mohapatra & Just.B.K.Patel/Just.C.R.Dash heard in length and both parties closed their argument but later Just.L.K.Mohapatra transferred. But it is very surprising how after the single bench judge passed the judgement stating the writ is not maintainable since the petitioner is not an employee of a Government company,wheras State Govt.in their affidavit admitted the company where the petitioner was working was a Govt.Company.It is learnt both opp. Parties paid more than Rs.12 lakhs to their advocate. After the judgement it is clear the higher courts are not meant for the poor, honest, sincere and dutiful employees. Furthermore the Opp.advocate failed to honour three judicial orders mentioned above of the Just.B.R.Sarangi.Just.Sarangi failed to mention the total charges and no where mentioned about the Companies Act.617 & 619. more  

There is not any improvement in many govt. department service so, it will be better to fix the delivery of time for all the services and corruption is not curb at lover level. And most importantly nothing has been look changed. I post a very minor but important example I booked the gas cylinder and I received the gas after minimum 10 to 15 days. But previously we get the gas within 10 days. Then what is the changes done by the govt. so please suggest to the govt. try to implement your policy at root label more  

WHY MODIJI ARE INCREASING FRIENDSHIP WITH PAWAR AND CO.?ITS'NOT GOOD AT ALL,MODIJI IS FAR MORE BETTER PERSON THAN PAWAR,HE BLAMED PAWAR FOR MANY REASONS IN SPEECHES DURING ELECTION THEN WHAT'S GOING ON IS COMPLETELY BAFFLING AND NOT GOOD AT ALL more  

if you want to punish offender than please give rewards to honest and loyal worker of GOI. recognize their effort. launch one programm to identify them. more  

Land Acquisition Law is attracting a lot of flak. Why can not we think in terms of recycling land bank available with sick / closed Industrial Units. It can take care of land requirements for industries / power plants for quite some time . With economy in place , alternatives for addressing farmers need could be effectively planned. Settlement of debt of the secured creditors /workmen/statutory duesare stumbling blocks ; but the same can be settled by an Inter - Ministerial Task Force. Given nod and after a nodal agency is identified , I can submit a detailed study report. Please add this to the list . more