D.M.Dharmadhikari, J. - (1.) THE sole point that arises for decision in this appeal before us is whether U.P. Rajya Karmachari Kalyan Nigam [for short 'the Corporation'] is covered by the definition of "State" under Article 12 of the Constitution of India and is amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India.
(2.) THE services of the petitioner from the post of Salesman in one of the stores of the Corporation have been terminated against which he approached the High Court of Allahabad. A preliminary objection was raised by the Corporation to the maintainability of writ petition on the ground that the Corporation does not fall in the definition of "State" under Article 12 of the Constitution. Relying on decisions of the Lucknow bench of the same Court in the case of Vijay Kumar Verma v. U.P. Government Employees Welfare Corporation [Writ Petition NO. 8246(ss)of 1992 decided on13.4.1993], 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 v. Indian Institute of Chemical Biology. 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 v. Union of India. By explaining and relying on constitution bench decision in the case of Ajay Hasia v. Khalid Mujid Sehravardi 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 Court on the subject, laid down the multiple test in the following words :- "The picture that-ultimately emerges is that the tests formulated in Ajay Hasia's case (supra) 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.
(3.) WE may also refer to the minority view expressed by learned Brother Lahoti J. in the case of Pradeep Kumar Biswas (supra) because the examination of nature of difference in opinion between majority and minority view, for the purpose of present case, may be of some relevance. In the minority view, different tests are required to be applied in each particular case. The claim of a body as included within the definition of "State" based on it being a statutory body falling in the expression 'other authorities' is to be considered differently from claim of a body based on the principles propounded in the case of Ajay Hasia (supra), that it is an 'instrumentality or agency' of the State. In the opinion of minority, the tests laid down in the case of Ajay Hasia (supra) are relevant only for the purpose of determining whether an entity is 'an instrumentality or an agency of the State'. The minority view is expressed thus :- "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.........................................It is this strong statutory flavour 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......................... 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 over-whelming 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 minority of the judges in the case of Pradeep Kumar Biswas (supra), we have to apply the laid down tests for determining the character of the Corporation involved in this case. We may clarify at the outset that the Corporation herein has not been created by any statute. It is merely a society registered under the Societies Registration Act of 1860. We will confine, therefore, our enquiry and decision as to whether the present Corporation is an 'instrumentality' or 'agency' of the State and can claim the status of 'State' as defined in Article 12 of the Constitution. Object for which the Corporation was formed :-;