Jammu & Kashmir High Court
Omkar Sharma And Ors. vs Mata Vaishno Devi Shrine Board on 20 May, 2005
Equivalent citations: 2005(3)JKJ388
Author: R.C. Gandhi
Bench: R.C. Gandhi
JUDGMENT S.N. Jha, C.J.
1. These letters patent appeals and writ petitions were heard on remand from the Supreme Court. Letters patent appeal Nos. 182 and 183 of 1992, arising from writ petition No. 497/1992, were dismissed by judgment and order dated 27th January, 1999. The Division Bench held that the writ petition was not maintainable as Shri Mata Vaishno Devi Shrine Board is not 'State' within the meaning of Article 12 of the Constitution of India. Following the said judgment, OWP No. 523/1995 & SWP No. 930/1998 were dismissed respectively on 8th February, 1999 and 23rd January, 2001. Feeling aggrieved the appellants/petitioners approached the Supreme Court. The Supreme Court noted that the cases had been decided on the basis of the decisions in Bhuri Nath and Ors. v. State of J&K, , which did not apply to the facts of the case, and Sabhajit Tewary v. Union of India, , which had been overruled in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, . Setting aside the impugned judgments of this Court, the appeals/writ petitions were remitted back for hearing and decision in accordance with law laid down in Pradeep Kumar Biswas's case (supra) in the following terms:
"... The High Court shall, therefore, first consider the maintainability of the writ petitions under Article 226 of the Constitution of India by examining whether the Shrine Board is amenable to the writ jurisdiction of the High Court, by applying the principles and tests laid down in Pradeep Kumar Biswas case (supra).
The High Court shall also consider whether any alternative remedy is available to the writ petitioners by way of civil suit or industrial adjudication. It shall be open to the High Court to take an appropriate decision thereupon, including the relegation of the parties to the appropriate remedy, if the High Court upon interpretation of the provision of Section 20 of the 1988 Act (The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988) comes to the conclusion that such alternative remedy is available to the writ petitioners before it.
In case the High Court takes the view that writ petitions are tenable, and that no other equally efficacious alternative remedy is available to the writ petitioners, then the High Court shall decide the writ petitions on their merits.
Before proceeding further it would be appropriate to have a bird's eye view of the facts of the case.
2. In writ petition, OWP No. 497/1992, giving rise to LPA Nos. 182 and 183 of 1992, the petitioners were employees of Shri Mata Vaishno Devi Shrine Board (in short the Shrine Board). They formed a union for collective bargaining professedly to improve their conditions of service. The union was registered with the Registrar of Trade Unions, Jammu and Kashmir on 11th December, 1990. On 15th January, 1991, however, the Registrar of Trade Unions informed the President, Shrine Board Employees' Union that they could not form a trade union as the Shrine Board, their employer, was not a trade or industry. The terms of employment of employees of the Shrine Board are governed by the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 and since its employees are deemed to be public servants under Section 15 of the Act, they are not registerable as a trade union under Indian Trade Union Act, 1986. The Registrar further informed that the registration having been obtained by mistake, it would be deemed to be withdrawn from 10th March, 1991. Despite withdrawal of the registration, the appellants and other employees of the Shrine Board carried on their trade union activities, incurring displeasure of the officers of the Shrine Board. The Shrine Board allegedly started victimizing them for the activities. Some of the employees were even removed from service. The concerned employees filed writ petition No. 497/1992 challenging termination of their services seeking writ of mandamus for their re-instatement with full back wages and consequential benefits. A learned Single Judge of this Court partly allowed the writ petition granting relief to some of the employees, while denying to other employees. The employees who were denied relief filed LPA No. 182/1992. The Shrine Board filed LPA No. 183/1992 challenging grant of relief to the other set of employees. By judgment dated 27th January, 1999, a Division Bench of this Court dismissed the appeals holding that the Shrine Board is not 'State' within the meaning of Article 12 of the Constitution of India and, therefore, the writ petition was not maintainable. The Division Bench, accordingly, did not go into merit of the orders of termination.
3. In OWP No. 523/1995 the petitioner was tenant in a shop let out by Shri Mata Vaishno Devi Dharmarth Trust at annual rent of Rs. 15,000. After the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1986 (Governor's Act, later replaced by the Act of Legislature in 1988), the petitioner claimed to have become tenant of the Shrine Board. After the Shrine Board took over, the petitioner was shifted from the original shop allotted to him by the Dharmarth Trust to a new shop constructed by the Shrine Board having smaller area. The officials of the Shrine Board also started interfering in his day-to-day business, threatening to throw him out of the shop and induct a new tenant so that they could extract higher rent. The petitioner filed writ petition, OWP No. 184/1994, which was disposed of with direction to the Shrine Board to consider his representation. The Shrine Board, thereafter, gave him notice that he had failed to file representation as directed by the High Court and unless he signs an agreement with the Board further action as deemed appropriate would be taken. Protesting the notice, the petitioner filed the instant writ petition i.e. OWP No. 523/1995. The petition came to be dismissed on 8th February, 1999 as being not maintainable following the decision in LPA nos. 182 and 183 of 1992.
4. In SWP No. 930/1998 the petitioner claimed to have been appointed as Chowkidar by Dharmarth Trust on 6th October, 1978 and become an employee of the Shrine Board after coming into force of the Shri Mata Vaishno Devi Shrine Act, 1988. According to him, he was working as receptionist when the Shrine Board came into existence. He filed writ petition, SWP No. 663/1993, making grievance that he was not being paid salary by the Shrine Board. During pendency of the case, on 2nd March, 1998, he was served with charge sheet alleging misappropriation. An enquiry was held and on 21st March, 1998 he was served with show cause notice against proposed termination of service. Finally, he was dismissed from service on 30th March, 1998. The petitioner filed the instant writ petition i.e. SWP No. 930/1998, challenging the termination of his services. The petition was referred to Division Bench. The Division Bench vide judgment dated 23rd January, 2001, following the decision in LPA nos. 182 and 183 of 1992, held that the petition was not maintainable and dismissed the same.
5. In view of the preliminary objection as to the maintainability of the writ petitions and direction of the Supreme Court to consider whether the Shrine Board is amenable to writ jurisdiction of the High Court, applying the principles and tests laid down in case Pradeep Kumar Biswas (supra), we do not propose to notice the stand of the respondent Board on merit of the claim of the writ petitions at this stage. It is only when the petitions are held to be maintainable that occasion would arise to decide the cases on merit.
6. The decision in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, , was rendered by a Bench of seven Judges on reference doubting correctness of the decision in Sabhajit Tewary v. Union of India, , rendered by a Bench of Five Judges. By the said decision the Council of Scientific and Industrial Research (CSIR) was held to be not an 'authority' within the meaning of Article 12 of the Constitution of India, and the writ petition against it was held to be not maintainable. The Indian Institute of Chemical Biology against which Pradeep Kumar Biswas filed writ petition is a unit of CSIR and the question of maintainability of writ petition thus eminently arose for consideration. Article 12 of the Constitution of India provides:
"In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature 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".
7. The significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The different articles in Part III place responsibilities and obligations on the State vis-a-vis an individual, to ensure protection of the individual's rights including the right to equality and equality of opportunity in matters of public employment and right to enforce the fundamental rights against the 'State' as defined in Article 12 under Article 32 in the Supreme Court or Article 226 in the High Courts. Having regard to its significance, question arose times without number about the import of the expressions 'State' and 'other authorities' occurring in Article 12 of the Constitution of India. In the beginning the terms 'State' and 'other authorities' were treated as exhaustive and confined to authorities which could be read ejusdem generis with the authorities mentioned in Article 12 itself. It is to be mentioned here that with the passage of time the scope of fundamental rights, particularly the right to equality under Article 14, got widened by judicial pronouncements. The right to equality not only prohibits discrimination but also ensures protection against arbitrary or irrational acts of the State. With the expanding horizons of Article 14, in particular, and the expanding governmental functions in a welfare State, which India is, the terms received wider meaning. In view of the authoritative pronouncement of the Apex Court in Pradeep Kumar Biswas's case, and the direction of the Supreme Court to decide the maintainability of the writ petitions applying the principles and tests laid down therein, it is not necessary to trace the development of law on the subject and refer to various decisions which are countless in number. We may, nevertheless, mention that the controversy arose firstly in context of the boards, corporations and companies. In the beginning only statutory corporations performing statutory duties or duties of public nature were regarded as 'other authorities' within the meaning of Article 12 of the Constitution of India. The case of Rajasthan State Electricity Board v. Mohan Lal, , is illustrative of this approach. The question therein was whether the Electricity Board which was a corporation constituted under a statute for carrying on commercial activities could be called 'State' within the meaning of Article 12 of the Constitution. It was held, "this decision of the Court support our view that the expression 'other authorities' in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law". The companies incorporated under the Companies Act were not regarded as State. The case Praga Tools Corporation v. C.A. Imanual, , may be cited as an illustration in this regard. Therein it was observed, "there was neither a salutatory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company".
8. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, , the question arose in the context of the Oil and Natural Gas Commission, the Industrial Finance Corporation and Life Insurance Corporation -- all public corporations set up by the statute. Affirming the decision in Rajasthan State Electricity Board v. Mohan Lal (supra) the Constitution Bench held that the 'State' under Article 12 would include a 'public authority' "which is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit". In Sabhajit Tewary v. Union of India, , the Supreme Court was called upon to consider whether a society registered under the Societies Registration Act could be regarded as 'other authorities' within the meaning of Article 12 of the Constitution. The contention was negatived observing that the society does not have a statutory character like the Oil and Natural Gas Commission or the Life Insurance Corporation or Industrial Finance Corporation as in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (supra).
9. The breakthrough came in the case of Ramana Dayaram Shetty v. International Airport Authority of India, and the law was developed further in the case of Ajay Hasia v. Khalid Mujib Sehravardi, . In the former case the Supreme Court formulated six tests for determining the legal character of a company or corporation as an instrumentality or agency of the government, as under:
(i) if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government;
(ii) where the financial assistant 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;
(iii) it may also be relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected;
(iv) existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality;
(v) if the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government;
(vi) if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being instrumentality or agency of Government.
These tests were approved later by the Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi (supra) and noticed with approval in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (supra).
10. The case of Ajay Hasia v. Khalid Mujib Sehravardi (supra) deserves a special mention. Whereas Ramana Dayaram Shetty v. International Airport Authority of India (supra) was a case of a statutory corporation, in Ajay Hasia writ was sought against a College established and administered by a society registered under the J&K Registration of Societies Act, 1898 complaining of arbitrariness in admission to engineering course in Regional Engineering College, Srinagar. The respondents objected to the maintainability of the writ petition under Article 32 of the Constitution contending that even if the procedure followed for selecting candidates for admission was arbitrary resulting in denial of equality to the petitioners and violation of Article 14, the protection under Article 14 was not available because the society was not 'State' within the meaning of Article 12 of the Constitution. Rejecting the contention the Supreme Court observed that the society obviously cannot be equated with Government of India or Government of any State nor can it be said to be a 'local authority' and, therefore, it must come within the expression 'other authorities' if it is to fall within the definition of 'State', but held that the concept of instrumentality or agency of the government is not limited to a corporation incorporated by a statute and is equally applicable to a company or society and in a given case it would have to be decided on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of expression of 'authority' under Article 12. In this context the aforementioned tests propounded in Ramana Dayaram Shetty v. International Airport Authority of India (supra) were approved.
11. It would be useful to notice certain observations in Ajay Hasia to appreciate the meaning of 'instrumentality and agency' of the government as an 'authority' under Article 12 of the Constitution as under:
"... Now it is obvious that the government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialized and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realized and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporations came into being as the third arm of the government....
It is immaterial for the purpose 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.... Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the government...."
12. It is thus clear, and to be kept in mind always, that for being called an 'authority' and therefore State within the meaning of Article 12 of the Constitution, the entity must be an 'instrumentality' or 'agency' of the government. It is not enough that the body has been created under, or even by, a statute unless it is an agency or instrumentality of the government so far as invoking fundamental rights under Part III is concerned. De hors the claim of infringement and enforcement of fundamental rights a writ petition under Articles 226/227 may lie. The definition of 'State' in Article 12 is only for the purpose of Part III. The article states, "In this part, unless the context otherwise requires, the State includes ..." and therefore, the, the definition is limited to application of fundamental rights.
13. After noticing the aforementioned tests and decisions on the subject, the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (supra), observing that the tests to determine whether a body falls within the definition of the 'State' in Article 12 of the Constitution laid down in Ramana Dayaram Shetty with the Constitution Bench imprimatur in Ajay Hasia form keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited, held:
"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. Applying the above tests, the question for consideration in the instant case is whether the Shrine Board is "financially, functionally and administratively" dominated by or under the control of the Government? To answer the question, it is necessary to refer to the relevant provisions of Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988. The Act has been enacted to provide for a better management, administration and governance of Shri Mata Vaishno Devi Shrine and its endowments, including the lands and buildings attached, or appurtenant, to the Shrine, beginning from Katra up to the holy Cave and the adjoining hillocks currently under the management of the Dharmarth Trust. Section 4 of the Act provides for vesting of Shrine fund in the Shrine Board. Section 5 provides for composition of the Shrine Board headed by the Governor of the State of Jammu and Kashmir as ex-officio Chairman, or an eminent person professing Hindu religion if the Governor is not a Hindu. Under Section 6, the Shrine Board is treated as a body corporate having perpetual succession and a common seal, by which name it can sue or be sued. Section 14 provides for appointment of officers and servants of the Shrine Board. It lays down that for efficient discharge of the functions assigned to it under the Act, the Shrine Board may appoint a Chief Executive Officer and such other officers and servants as it considers necessary with such designations, pay, allowances and other remuneration and perquisites as the Shrine Board may determine from time to time. Under Section 15 the officers and servants of the Shrine Board are treated as public servants within the meaning of Section 21 of the State Ranbir Penal Code. Section 19 provides for extinguishment of all rights of Baridars and other persons who were earlier managing the affairs of the Shrine. Section 20 provides that no suit or other proceedings shall lie in any court against the Shrine Board or its officers for anything done or purported to be done in good faith by it under the Act. Section 24 empowers the Shrine Board to make bye-laws not inconsistent with the Act for carrying on its duties.
15. It was submitted on behalf of the Shrine Board that in the entire process of management, administration and governance, the Government of Jammu and Kashmir has absolutely no role to play. The Shrine Board constituted under the Act is a fully autonomous and independent body and there is not iota of control by the Government. It, therefore, cannot be said to be an instrumentality of the State and, therefore, an authority within the meaning of Article 12 of the Constitution of India.
16. An affidavit by Shri Arun Kumar, Chief Executive Officer of the Shrine Board has been filed wherein it has been stated that since the take over of the management and the functions, Shri Mata Vaishno Devi Shrine Board is performing its functions independently. It has not been receiving any direction from the government for performing any of its functions. Members of the Shrine Board have been nominated by the Chairman of the Board in terms of Section 5 of the Act and the State never had any role or say in their nomination or appointment. The process of nomination continues and members are appointed whenever there is a vacancy. There has never been any representative of the Government in the Shrine Board. The management and control of all the functions of the Shrine is vested in the Shrine Board which consists of independent persons having vast experience in different fields. All decisions relating to the management and control of pilgrimage are taken solely by the Shrine Board, regulating the pilgrimage, making provisions for facilities on the track leading to the holy Shrine and its affairs are managed by the Shrine Board. The State or its functionaries have no control or say in these matters. The Shrine Board has never sought and received even a single rupee or any other aid from the Government. The Shrine Board is generating its own funds. It is managing its affairs from the money collected from donations from devotees, tariff of accommodation and license fees from the shops. The Shrine Board exclusively has been taking decisions as to utilization of the money for creating better facilities for the pilgrims. It has its own auditors for audit of its accounts. It has framed bye-laws under Section 12 of the Act, laying down the service conditions of its employees. The emoluments and incentives to the employees are paid by the Shrine Board out of its own funds and there is no assistance from the State Government. The Shrine Board has its own cadre of employees and service conditions. It has its own legal department. There are some government employees on deputation but the deputation is on requisition of the Shrine Board and not at the behest of the State Government. It is the prerogative of the Shrine Board to seek deputation if it so requires. The Shrine Board has acquired lands and constructed buildings for the facility of pilgrims purely from its own funds. The Shrine Board has employed priests for performing Pooja at the holy Cave and other places of worship. The functions performed by the employees are entrusted to them by the Shrine Board over which the Government has no control.
17. These statements have not been denied on behalf of the petitioners. The question in the light of these facts is whether the Shrine Board can be said to be "financially, functionally and administratively" dominated by or under the control of the Government? The answer to the question has to be in the negative. In view of the uncontroverted position that the Shrine Board is not taking and has never taken in the past any kind of financial help in discharge of its duties in the matter of management and administration of the Shrine and its endowments, it does not function under the shadow of the Government and there is no government control over its affairs, the conclusion is irresistible that the Shrine Board is not a State or an authority within the meaning of Article 12.
18. It is also to be considered whether and to what extent the tests propounded in Ramana Dayaram Shetty and approved in Ajay Hasia and Pradeep Kumar Biswas are satisfied in the instant case. The first test relates to the control over the share capital. The Government has no control whatsoever over the funds of the Shrine Board. The second test relates to the financial assistance by the State. The Shrine Board has not been receiving any financial assistance from the State and the second test also is not satisfied. The third test relates to the monopoly factor i.e. whether "the corporation enjoys monopoly status which is State conferred or State protected". The activities of the Shrine Board being purely of a different kind, the question of its enjoying any monopoly status conferred or protected by the State does not arise and the third test also thus is not satisfied. The fourth test relates to the "existence of deep and pervasive State control". This test apparently is not satisfied too. The fifth test relates to the nature of functions "as to whether they are of public importance and closely related to governmental functions". Though not closely related to governmental functions, the function of the Shrine Board can be said to be of public importance and, therefore, the fifth test can, arguably, be said to be satisfied.
The sixth test refers to "transfer of government department to the corporation". The question of transfer of government department does not arise in the instant case.
19. It would thus appear that except that the nature of functions of the Shrine Board can be said to be of public importance, no other test laid down in Ramana Dayaram Shetty is satisfied. It is relevant to mention that referring to these tests, in the minorityjudgment of Lahoti J (as his Lordship then was), it was held that tests 1, 2 and 4 enable determination of governmental ownership or control. Tests 3, 5 and 6 are "functional" tests. Though these tests are relevant for purpose of determination whether the 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.
20. In the above premises even though the Shrine Board has been constituted under a statute and, therefore, has a statutory status, in the absence of any kind -- even an iota of control of the Government -- financial, functional or administrative -- it cannot be said to be State or an authority within the meaning of Article 12 of the Constitution of India. It has, therefore, to be held that the writ petitions for enforcement of fundamental rights against the Shrine Board are not maintainable. It is not the case of the appellants/petitioners that de hors the claim as to infringement or enforcement of fundamental right, the writ petitions would succeed.
21. Coming to the second question framed for consideration by the Supreme Court -- whether any alternative remedy is available to the writ petitioners by way of civil suit or industrial adjudication -- on behalf of the petitioners reference was made to Section 20 of the Act in terms of which "no suit or other proceedings shall lie in any court against the Board or its officers for anything done or purported to be done in good faith under the Act by it or them". It was submitted that Section 20 creates a bar to suits or other proceedings and, therefore, recourse to writ jurisdiction is the only remedy available to them. On behalf of the Shrine Board it was submitted that Section 20 simply protects the Shrine Board and its officers from action done in good faith and it is open to the person aggrieved to challenge the action of the Shrine Board or its officers on the ground that they were not done in good faith. Though it may be a question of fact as to whether the impugned act was done in good faith or not, to be determined at the trial of the suit on the basis of evidence, suit as such cannot be said to be barred at its inception and, therefore, the person aggrieved by any action of the Board or its officers cannot be said to be remediless. A similar stand was taken in respect of industrial adjudication. It was stated that as on date dozens of suits and other proceedings are pending in different fora against the Shrine Board and its officials and in none of them the Shrine Board has objected to the maintainability of the proceedings invoking the provision of Section 20 of the Act. The submissions of counsel for the Shrine Board are well founded and in accord with Section 20 of the Act and, therefore, the question framed for consideration must be answered in the affirmative by holding that the petitioners are not deprived of the alternative remedy by way of suits or other proceedings.
22. In view of the above finding, an alternative remedy being available to the petitioners, and the writ petitions being not maintainable, it is not necessary to consider the merit of the cases.
23. In the result, while LPA No. 182/1992 is dismissed, LPA No. 183/1992 is allowed and the connected writ petition, OWP No. 497/1992, is dismissed. Writ petitions, OWP No. 523/1995 and SWP No. 930/1998, are also dismissed. There will be no order as to costs.