FIRDOUS AHMAD TANKI Vs. J&K BANK LTD AND STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
Firdous Ahmad Tanki
JAndK Bank Ltd And State Of JAndK
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PERMOD KOHLI, J. -
(1.) WE are called upon to answer this reference viz 'Whether the Jammu and Kashmir Bank Ltd (hereinafter to be referred to as the 'Bank)
is a "State" or "Authority" or an "Instrumentality" or "Agency" of the
State within the meaning of Article 12 of the Constitution of India and
amenable to writ jurisdiction of this Court.
(2.) IT would be convenient to make a brief reference to the back -ground which led to this reference before us afresh. In a petition
filed by petitioner Firdous Ahmed Tanki, an employee of the
respondent -Bank, a learned Single Judge of this Court referred the matter
to Full Bench vide order dated 6 -5 - 1992 for answering the question
referred to hereinabove. On receipt of this reference, the then Chief
Justice vide his order dated 20 -10 -1992 referred the matter for
consideration of the Full Bench. The matter accordingly came to be
considered by the Full Bench on 2 -11 -1992. The Full Bench noticed an
earlier judgment of this Court dated 9 -12 -1994 passed in LPA (W) No.
34/1984 titled Jagdish Chander Gupta Vs J&K Bank Ltd and accordingly the petition was admitted to hearing. The matter was finally heard and
decided by a Full Bench of this Court vide judgment dated 5 -12 -1995
declaring the Bank as an "Authority" an "Instrumentality" and "Agency" of
the State as contemplated under Article 12 of the Constitution of India
and thus amenable to writ jurisdiction of this Court. The conclusion of
the Full Bench is noticed here -under:
"We therefore, hold that the Bank is an 'Authority", an "Instrumentality" and "Agency" of the State as contemplated under Article 12 of the Constitution and thus amenable to the writ jurisdiction of this Court. We return the writ petition to the Single Bench for consideration/hearing on the merits in the light of our afore -said observations"
(3.) THIS judgment of the Full Bench became subject matter of challenge in two Civil Appeals preferred before the Apex Court, both
preferred by the Bank being Civil Appeal No. 1874 of 1997 and Civil
Appeal No. 7426 of 1997 titled J&K Bank and others Vs Firdous Ahmed Tanki
and others and J&K Bank and others Vs Chandji Koul respectively. The Apex
Court vide its order dated 4 -3 -2003 remitted the case back to the High
Court after setting aside the judgment dated 5 -12 -1995 passed by the Full
Bench and directed the High Court to examine the matter afresh in the
light of the later judgment of the Honble Supreme Court in Pradeep Kumar
Biswas Vs Indian Institute of Chemical Biology and others, (2002) 6 SCC
111. The order of the Honble Supreme Court remanding the case to this Court is re -produced here -under: -
"In our view, it would be just and appropriate that the Full bench of the High Court examines the mater afresh in the light of the judgment of this court in Pradeep Kumar Biswas afore -mentioned after considering the facts of the case in details. While examining the same, the High Court may also take note of the reduction of the share capital of the State, which it is stated, has come to 53%. Without expressing one way or the other, We set aside the impugned judgment and remit the case to the Full Bench of the High Court for examining the matter afresh in the light of the judgment in Pradeep Kumar Biswas Vs Indian Institute of Chemical Biology and others (2002) 5 SCC 111" It is how this reference has again landed before us ( Full Bench).
In view of the remand order referred to hereinabove, We are required to examine the status of the Bank and formulate an opinion?.
Does it fall within the purview of an 'authority, or an 'instrumentality
as contemplated under Article 12 of the Constitution of India in the
light of two important factors as noticed by the Honble Supreme Court,
(i) reduction in share capital of the State Government from 79.86 % (as
on the date of judgment of the Full Bench on 5 -12 -195) to 53%; (ii) The
impact of the ratio of the judgment of the Honble Supreme Court in case
of Pardeep Kumar Biswas.;
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