CHOPRA, J. - (1.) THIS writ petition has been filed by the petitioner challenging the order of General Manager, the Bank of Rajasthan Limited, dated 22nd of July, 1988, marked as Anx. 2, whereby the General Manager of the aforesaid Bank has ordered for the dismissal of the petitioner from services of the Respondent Bank with immediate effect as also the appellate order of the Chairman and the appellate authority of the Bank dated 6th of December, 1988, marked as Anx. 5, whereby the order of dismissal has been converted into one of compulsory retirement of the petitioner from the Bank's services and the petitioner was made entitled to the payment of pension and gratuity payable to the Officers of the Bank and the order of the Board marked as Anx. 7 dated 17. 7. 1989 whereby the mercy petition of the petitioner was dismissed and the Board deprived the petitioner from the Provident Fund Contribution made by the Bank to his P. F. Account and further deprived him of the payment of gratuity. They were forfeited. The initial resolution in that respect was passed by the Board of Directors on 1. 2. 1989 and the same was confirmed at the time of the rejection of his mercy petition dated 26. 3. 1989.
(2.) THE facts necessary to be noticed for the disposal of this writ petition briefly stated are that the petitioner was initially appointed on the post of officer in the Bank of Rajasthan on 18. 5. 1957. Later he was promoted as Assistant Manager, Manager and Manager A Grade, with effect from 8. 3. 1958, 22. 6. 1960 and 1. 1. 1976 respectively and continued to discharge duties as such Manager Grade A till 22. 6. 1988 when he was ordered to be dismissed from service vide Anx. 2. It was claimed that the Bank of Rajasthan is a registered body under the Banking Act of 1949. It is discharging different functions, i. e. to promote the economic interest of the public and is actively participating in the draught relief programme within the guidelines issued by the Reserve Bank of India and caters to all types of credit needs of all the persons belonging to economically weaker-sections of the society. It is managed by 11 Directors, out of which four are nominated by the Reserve Bank of India under section 37a and B of the Banking Regulation Act of 1949. It is a scheduled and a licenced Bank and has to keep its reserves with the Reserve Bank of India. Thus , it discharges public nature of functions and, therefore, it is an instrumentality of the State and therefore, a state under Article 12 of the Constitution. It was claimed that the petitioner was issued with a charge-sheet by the 2nd Respondent, i. e. the Chairman and the Chief Executive Officer of the Bank vide his letter No. 33/per/413/81 dated 10. 1. 1981. Briefly stated, the charges are as under: 1. " That he made advances beyond his powers, without obtaining the sanction from the competent authority; 2. That he was grossly negligent in conducting the advances portfolio at the B/o Kanpur in respect of various parties; 3.That he accommodated various parties by granting OD. limits despite suspenion of his sanctioning and discretionary powers; 4. That he concealed the relevant information from the Central Office; 5.That he authorised the payment of a cheque for Rs. 6000/- in the a/c of M/s Idsun Industries when sufficient D. P. was not available. " The copy of the charge-sheet is Anx. 1. The inquiry was conducted by four officers. Last being Shri S. N. Gupta who was promoted as Manager Grade A on 17. 5. 1983 whereas the petitioner was promoted as Manager Grade A on 1. 1. 1976. Thus, he was definitely junior to the petitioner and could not have conducted disciplinary enquiry against him. It is alleged that only four witnesses were examined from the side of the prosecution. Shri F. L. Lodha, Chief Officer, Inspection, who inspected the work of the petitioner was not examined inspite of request. Shri N. K. Bhootani who was officer at Kanpur was also not examined. The copy of Reserve Bank of India Inspection Report was also not produced in the enquiry. All these facts were brought to the notice of the authorities but they were of no avail and it is alleged that they have prejudiced the defence of the petitioner. The copy of the Inquiry Officer's report was served on the petitioner with his dismissal order. Earlier to it, the copy of the enquiry report was not supplied to the petitioner. The enquiry report is dated 16. 2. 1987, which was supplied to the petitioner with the dismissal order on 22. 7. 1988. The order was passed by the 3rd respondent, i. e. the General Manager of the Bank of Rajasthan who is not his appointing authority. He was appointed Manager Grade A by the Chairman of the Bank and, therefore, the dismissal order could not have been passed by the General Manager. The enquiry report discloses that charge Nos. 1,4 and 5 were not proved. As per the Inquiry Officer, the charges Nos. 2 and 3 were only partly proved. There is no provision for a charge to be partly proved. Be that as it may, the disciplinary authority disagreed with the findings of the Enquiry Officer on charges Nos. 1,4 and 5 and held them proved without giving any opportunity to the petitioner of making his submissions. Even the Enquiry Officer did not take into consideration the written arguments submitted on behalf of the defence. It is alleged that the enquiry report is fabricated and the signatures of Shri S. N. Gupta on it are forged. They do' not tally with the admitted signatures as they exist on Anx. 3 A detailed appeal was submitted by the petitioner on 8. 8. 1988 against the order of respondent No. 3 dated 22. 7. 1988, the copy of which has been filed on record as Anx. 4 but respondent No. 2 did not consider the contentions raised in the memo of appeal and disposed of the appeal vide his order dated 6. 12. 1988 by a cryptic order modifying the order of the petitioner's dismissal to that of a compulsory retirement with effect from 22. 7. 1988. When the original order was issued by the officer who was not authorised to issue such an order, the appellate order does not cure that order. The second appeal or mercy petition before the Board of Directors also met the aforesaid fate and inspite of the fact that the order of compulsory retirement has been maintained but the order of the Board forfeiting his gratuity amount P. F. contribution made by the Bank almost converted the order of ompulsory retirement into that of removal. Even the defence witnesses were not examined and, therefore, the petitioner has claimed that all these orders being illegal and against the principles of natural justice and fair play deserve to be quashed. A reply to the writ petition was filed on behalf of the respondents in which a preliminary objection was raised that this Bank is a public limited company which was initially established under the Mewar Companies Act of 1942, which Act was subsequently repealed by the Companies Act of 1956 and now the Companies are governed by the Indian Companies Act, 1956. The Management and affairs of the Bank of Rajasthan are not controlled by any agency or instrumentality of the State. It is not a Government company but it is private body and, therefore, it cannot be treated to be a State under Article 12 of the Constitution because neither the entire share capital is held by the Government nor the Company enjoys the monopoly status conferred by the State nor the functions which are performed by the bank are governmental functions or functions closely related thereto. No department of the Govern-ment has been transferred to the Corporation. There is no State control. The column of financial assistance is. . . . . . . . . . negligible and no statutory duties are performed by it and thus this being neither a State nor an instrumentality of the State, the writ petition dose not lie against it. Rather it has been stated that neither this company is financed by the Government nor the Government has any share holding in the respondent company. It is not statutory body exercising or performing statutory functions or powers and is not supported by the State Act and, therefore, the writ petition deserves to be dismissed. No reply has been filed to the averments made in the writ petition. the petitioner has filed certain documents Anx. 11, 12, 13 and 14 to show that the petitioner has been appointed by the Chairman. The respondents have chosen to file written statements only with respect to their contention that the respondent Bank is not a State or an instrumentality of the State. No reply has been filed to any other contentions raised by the petitioner in his writ petition and thus they go uncontroverted. From the side of the petitioner, additional submissions were made on 18. 7. 1993, and in which it was pointed out that officers in grade A are appointed by the Chairman and the petitioner was so appointed vide Anx. 16 dated 17. 03. 1976 and was confirmed vide Anx. 5 on that post. It is dated 7. 9. 1976. The petitioner has also filed Anx. 16 which is. the seniority- list of the officers as on 31. 05. 1985 and it is disclosed in that list that officers in scale No. II Shri K. M. Mohnot's name is at serial No. 4 whether as Shri S. N. Gupta finds mention and Serial No. 7, Thus, it was claimed that he was definitely senior to the Enquiry Officer. This Court on 2. 7. 1993 asked the counsel of the respondent to clarify whether Shri S. N. Gupta who has held inquiry against Shri Mohnot, is junior to Shri K. M. Mohnot. That fact has been admitted in the additional affidavit filed by Shri Deepak Kiran. The respondents were also asked to clarify whether the alleged signature of Shri S. N. Gupta on the enquiry report, are forged or not, about which it is claimed that Shri S. N. Gupta suffered from the disease of paralysis some time in the month of March, 1986 which will be clear from the certificates submitted by him on 9. 2. 1986 marked as Anx. R/l and R/2 filed with the additional affidavit. It is claimed that the signatures of Shri S. N. Gupta are similar to the signatures made by him on his representation dated 31. 7. 1987 and, therefore, they are not forged. The Court further directed the respondents to clarify whether the General Manager who passed the dismissal order against the petitioner could function as a disciplinary authority and whether he is the Appointing Authority of the petitioner or not to which a clarification was given that the petitioner has been appointed by the order of the Chairman of the Bank but it was claimed that the powers of the disciplinary authority have been delegated to the General Manager of the Bank by the Board of Directors of the respondent Bank which fact was duty notified through a circular and it was claimed that in view of the specific delegation of powers made in favour of the General Manager, the power of the disciplinary authority had been rightly exercised by the General Manager of the Bank in case of the petitioner. Neither the date of the resolution of the Board has been disclosed nor the copy of the resolution by which such powers of the disciplinary authority were conferred on the General Manager has been filed. Even the copy of the Circular authorising the General Manager of the Bank to act as a disciplinary authority has been filed. I have heard Shri J. K. Kaushik appearing for the petitioner and Shri J. P. Joshi appearing for the respondents.
(3.) THE entire thrust of Shri J. P. Joshi's submission is that the respondent bank not being a State, as defined in Article 12 of the Constitution and it not being an instrumentality of the State or any department of the State, no writ petition is maintainable against it. In this respect Mr. Joshi has taken a preliminary objection that no writ of mandamus lies against the Bank and, therefore, the writ should be dismissed. In support of his arguments he has drawn my attention to the decision of the learned single Judge of this Court rendered in Hiralal v. Railway Shramik Sahakari Bank limited reported in (1), in which it was held that the writ lies against the State or other authorities. Non-petitioner Railway Shramik Sahakari Bank Ltd. is not a State or other authority. It has been registered as a society under the Societies Registration Act and does not become State or other authority ipso facto. THE petitioner has to show that it is an instrumentality or agency of the State. It was pointed out by the learned single Judge that no Government control has been pointed out. In fact, the society is run by the members. Main financial source of the Society is the share capital and the deposits made by the members of the society. THE society accepts the deposit only from the members advances the loan for carrying on bank business only amongst its members and thus it is not an instrumentality of the State. My attention was next drawn to a decision of J. & K. High Court in the case of Jagdeesh Chandra Gupta v. J. & K. Bank Ltd. reported in The learned Judges of the Division Bench observed that the entire share capital of J. & K. Bank was not owned by the State Government. It only owned major portion and the rest of it was owned by private persons. The entire expenditures of the bank was not met with the financial assistance of the State Govern-ment. It did not enjoy monopoly status. It is not state controlled or state protected. It may have monopoly qua State Government but did not have monopoly status in the State which was protected by law. The State did not exercise deep and pervasive control. The administrative control vests in the Board of Directors, the majority of them being from the general public. Seven out of the ten Directors are not connect with the State Government. Its functions were not of public importance and closely related to the Government. It has been establishment as business concern in the year 1938 and started transacting the bank business with 8 individuals under the Company Law then applicable to the State and thus its officials were not other authorities for the purposes of Article 12 of the Constitution and, hence, it is not amenable to the writ jurisdiction. The financial control of the bank did not fulfill any of the tests laid down in AIR 1981 SC, so as to make it an instrumentality or agency of the State Government or an authority within the meaning of Article 12 of the Constitution. My attention was next drawn to the decision of the Supreme Court rendered in Tek Raj Vasananda v. U. O. I. , reported in The Institution of Constitutional and Parliamentary-status was registered under the Societies Registration Act of 1960 and, therefore, it is not the State within the meaning of Article 12 of the Constitutional. Their Lordships observed that there are certain decisions which have been formulated by several cases of the Supreme Court to find out whether any institution is a State. However, their Lordships felt that there cannot indeed be a straight-jacket formula. It is not necessary that all the decisions should be specified for reaching the conclusion either what was against holding an institution to be a State. In a given case some of the features may emerge so patently that second view may not be possible and there may yet be other cases where matter would be on the border line and it will be difficult to take one view or the other outright. Their Lordships in that case felt that the objects of the society were not governmental-business. The objects certainly were to equip members of Parliament and State Legislatures with requisite knowledge and experience for better functioning. The memorandum of society permits acceptance of gifts donations and subscriptions. No doubt the annual contribution from the government has been substantial yet some money has been coming from other sources also. Their Lordships taking into consideration the broad picture of the matter held that ICPS cannot be held to be either a State or an agency or instrumentality of the State so as to come within the meaning of other authority under Article 12 of the Constitution. Their Lordships, in para 21 observed that although the employees of the institution may not be State employees or holders of civil posts and hence they may not be entitled to be covered by Article 311 of the Constitution, but benefits of Part III i. e. fundamental rights will be available to them in that context the dismissal of the employee of the Institution of Constitutional or Parliamentary Status were set aside and the proceedings were restored to the stage of the inquiry. Thus, it has been held that although ICPS may not be an instrumentality of the State or a State or an Agency of the State still its employees can claim benefit of part III of the Constitution. ;