D.V. Sehgal, J. - (1.) THE Petitioner was appointed as Assistant Secretary, District Red Cross Branch, Roopnagar, in March, 1967. He was promoted to the post of Executive Secretary, - -vide order dated May 17, 1971, Annexure P. 1. As per the resolution No. 3 dated October 10, 1968 adopted by the District Red Cross Branch, Roopnagar, the services of its employees including the Petitioner were governed by the Punjab Civil Service Rules. On his request, he was appointed as Executive Secretary of the District Red Cross Branch, Ferozepur, - -vide order dated 8th October, 1976 Annexure P. 2. The Deputy Commissioner, Ferozepur, who is the President of the District Red Cross Society, Ferozepur, ordered termination of his services without assigning any reason, - -vide his order dated 29th April, 1977 Annexure P. 3. On his representation dated 9th May, 1977 Annexure P. 4, the Governor of Punjab, who is the President of the State Branch of the Red Cross Society (hereinafter called 'the Society') passed an order dated 15th May, 1977 Annexure P. 5 staying termination of his services. Respondent No. 3, however, did not comply with this order. He submitted another representation Annexure P. 6 but with no result. Then he submitted another representation dated 12th July, 1977 Annexure P -7 to the Chief Minister, Punjab, who is the Chairman of the Society. The Chief Minister, - -vide his order dated 29th November, 1977 Annexure P. 8 accepted his representation and ordered his reinstatement. In spite of this, he was not permitted to rejoin his post. He submitted subsequent representations dated 10th February, 1978 and 17th September, 1978 Annexures P. 9 and P. 10 respectively. He continued visiting the office of Respondent No. 3 but he was not permitted to join duty. He, therefore, filed the present writ petition praying for quashing of the order Annexure P. 3 and for a writ of mandamus directing Respondent No. 3 to implement the orders Annexures P. 5 and P. 8 and for a declaration that he continues to be in service of the Respondents. Written statement was filed by Respondent No. 3 wherein, inter -alia, it was contended that the Petitioner's services were terminated after going through various allegations regarding defalcation of Red Cross money, mismanagement of Red Cross affairs, Lack of sense of responsibility, absence without leave and negligence in the discharge of his duties and that the termination of his services as ordered by the President of the District Red Cross Society, Ferozepur, was confirmed by the Executive Committee of the Society in its meeting held on 10th May, 1977.
(2.) MR . Agnihotri learned Senior Advocate, appearing for the Respondents, raised a preliminary objection to the effect that the writ petition was no maintainable against the Red Cross Society. On the other hand, Mr., J.. Gupta, Senior Advocate, appearing on behalf of the Petitioner, countered this plea by contending that the District Red Cross Society, Ferozepur, was admittedly constituted under the provisions of Red Cross Society Act, 1920 (hereinafter called 'the Act'), He invited my attention to the different provisions of the Act to show that the President of India heads the Indian Red Cross Society. The Governor of Punjab is the president of the Punjab Branch of the Red Cross Society while the Chief Minister of Punjab is its Chairman The Deputy Commissioner, Ferozepur, is the President of the District Red Cross Society, Ferozepur. According to him, since the Red Cross Society is constituted under a statute and is headed by high Government functionaries, it is an authority and consequently a 'State' and, therefore, the writ petition against it is maintainable. It is trite to mentioned that before the Petitioner seeks the protection of this Court invoking exercise of its extraordinary jurisdiction under Article 226 of the Constitution on the ground of infraction of his Fundamental Rights to equality before law and equality of opportunity in the matter of employment guaranteed by Articles 14 and 16 of the Constitution respectively, he has to establish that the Red Cross Society is a 'State' within the meaning of Article 12 of the Constitution. No doubt the Society is established and constituted under the Act as has been duly admitted by the Respondents, but that by itself would not give it the character of 'State'. This is, in fact, no longer treated as a determining factor. In Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. : A.I.R. 1981 S.C. 487 it has been held: It is immaterial for determining whether a Corporation is an authority, whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a Government company or a Company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors.
(3.) IN the light of the above principles, we have to examine the provisions of the Act and the Rules made there under. The Act was brought on the statute book soon after the 1st World War. Its object Vas to provide for future administration of the various monies and gifts received from the public for the purpose of medical and other aid to the sick and wounded and other purposes of a like nature during the war and more especially for the administration of the monies and property held by a Committee known as the Joint War Committee, Indian Branch, of the Order of St. John of Jerusalem in England and the British Red Cross Society, and to constitute an Indian Red Cross Society with a view to the continuation in peace time, on a wider basis and with a wider purpose, of the work carried on by the said Committee during the war, and to provide for the affiliation therewith of other Societies and Bodies having similar objects. Section 2 of the Act lays down that the first Members of the Society shall be nominated by persons who immediately before the commencement of the Act were Members of the Joint War Committee, Indian Branch, of the Order of St. John of Jerusalem in England and the British Red Cross Society at a meeting. The number of Members to be so nominated shall not be less than 25 or more than 50. Section 3 provides for appointment from among the Members nominated under Section 2, the Managing Body of the Society, the Members of which shall hold office as such until a new Managing Body is appointed as provided by the Act. The number of the Members of the Managing Body shall not be less than 10 or more than 30. Section 6 of the Act lays down that upon the nomination of the first Members of the Society and the appointment of the Managing Body, the British Red Cross Society shall be dissolved and all its movable and immovable property shall vest in the Society and shall be applied by the Managing Body to the objects and purposes set out in the Act arid all its debts and liabilities shall be transferred to the Society and shall thereafter be discharged and satisfied by the Society out of the aforesaid property. Section 4 of the Act provides for constitution of the Society as a Body corporate under its name having perpetual succession and a common seal with power to hold and acquire property movable and immovable and to sue or be sued by its name. Section 5 of the Act empowers the Managing Body of the Society to make rules for the management, function, control and procedure of the Society Section 7 of the Act lays down the purposes to which the Managing Body may in its discretion apply the funds of the Society. The purposes enumerated therein are - - ...for the relief of sickness, suffering or distress caused by the operation of war in India or in any other country in which Expeditionary Forces from India may, from time to time, be employed and for purposes cognate to that object and in maintaining the Red Cross Depots for military purposes. It further provides that the income only of the property vested in the Society but not the corpus or any part thereof be applied for the relief of sickness or suffering in India, whether due to the operation of war or not, or in pursuance of any of the objects set forth in the 1st Schedule. Section 10 vests the managing Body with the authority to determine in all cases what matters properly fall within the scope of Clause (b) of Section 7. Section 11 allows the Managing Body to receive and hold gifts of whatsoever description either for the general purpose of the Society or for any particular purpose and apply the same for the purposes specified. Section 9 of the Act vests the power in the Managing Body to affiliate to the Society any other society or body whether constituted in India or in any other country having all or any of the objects and purposes referred to in Section 7 and may provide for the allocation and distribution of funds, through such society or body, to or for any such objects or purposes.;