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Judgment
T. Meenakumari, J.—The writ petition is for the issue of writ of certiorarified mandamus to call for the records of the respondents made in
Ref. No. A5/9347, dated September 30, 1989 and Ref. No. A5/9347 dated November 22, 1989 and quash the same and consequently direct
the respondents to continue the services of the petitioner till his normal date of superannuation.
Learned counsel for the petitioner has argued that the petitioner was appointed as an Engineer in the Pachaiyappa''s Trust in the year 1970 on a
regular basis. He has also argued that the conditions of service of the persons employed in the Pachaiyappa''s Trust are governed by the same
conditions of service pertaining to Government employees employed in the Directorate of Collegiate Education. The age of superannuation of the
employees employed in the Trust is 58 years. As the Trust has a number of buildings both residential and non-residential, it requires repairs and
maintenance work. The petitioner being the only Civil Engineer of the Trust, he was looking after the repairs and maintenance, While so, the first
respondent-Trust issued the proceedings dated September 30, 1989 to the petitioner and the same was received by the petitioner on October 3,
1989. The contents of the proceedings are to the effect that his services are terminated by giving three months'' notice on the ground that there was
no need for a full time Engineer for the Trust and the first respondent resolved to terminate the services of the petitioner. The above proceedings
are impugned in this writ petition on the ground that the first respondent has no jurisdiction to terminate the services of the permanent employee by
giving three months'' notice. It has also been argued that as there is no rule or provisions in any contract providing for such a contingency, the
action of the respondent is liable to be struck down as unenforceable. It has been further argued that the termination of the services of the petitioner
amounts to punishment and it is bad in law as the same was not done according to the principles of natural justice. Learned counsel has further
argued that the termination of the petitioner amounts to removal from service and causes stigma on the petitioner. He has also argued that the
impugned decision is biased, vindictive and malafide. In the above circumstances, learned counsel for the petitioner has argued for quashing of the
impugned order.
The respondents have tiled a counter stating that the age of retirement of the employees shall be upto 60 and shall continue upto 62 in certain
cases. On the basis of the counter, learned counsel for the respondents has argued that they have power to terminate the services of the employee
when they feel that the employee has no sufficient work commensurate with the salary. It has also been stated that the Trust is having a Diploma
holder in civil engineering and they can utilise the services of the Diploma holder for putting up thatched shade and other repairs. As the Trust felt
that the services of the petitioner were no more required, a notice was issued in proceedings No. A5/9347/89, dated September 30, 1989 to
terminate his services by giving three months'' notice. They have denied the allegation that the notice was issued as a punitive measure. They have
also stated in the counter that it was done basing on the financial position of the Trust. The contention of the respondents is as there was not
enough work for a full time Engineer, they have chosen to terminate the services of the petitioner. Basing on the above, learned counsel for the
respondents tried to substantiate the action of the respondents.
As the writ petition is filed against a private Trust, the preliminary question that arose for consideration in this case is whether the writ petition
filed by the petitioner is maintainable against the Pachaiyappa''s Trust. Learned counsel for the petitioner has argued that the Trust was registered
under the Tamil Nadu Act 11 of 1981 and it functions under the Managing Committee. He has further argued that the writ petition is maintainable
as the Trust receives financial assistance from the Government. Learned counsel for the petitioner has argued that the institution is a Trust created
by the Tamil Nadu Act 11 of 1981 and it is a public functionary and it is amenable to writ jurisdiction under Article 226 of the Constitution of
India. He has further argued that there is a public duty cast upon the respondents to perform the functions of a public body. When the respondents
violate the public duty, this Court can interfere under Article 226 of the Constitution. More so, the Trust is imparting education by receiving aid by
way of funds and donations. On the above contentions, learned counsel for the petitioner tried to substantiate the argument that the Trust is
amenable to writ jurisdiction. Learned counsel further argued that even assuming that the writ petition is not maintainable, mandamus can be issued
to implement the public duty. Learned counsel for the petitioner has submitted that the Government has donated considerable sum towards the
loans and donations to the Trust and therefore, the Trust which is receiving donations and loans from the Government is deemed to be the
instrumentality of the State and the writ petition is maintainable against the Trust. To substantiate his contention that the writ petition is maintainable,
learned counsel for the petitioner has relied upon the following decisions:
(1) Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another,
(2) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others,
(3) Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, .
(4) Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., .
It is not in dispute that the Trust is an independent entity registered under the Tamil Nadu Act 11 of 1981. The test for determining whether a
particular Trust or a Company or Agency is instrumentality of the State so that it can be characterised as an authority within the meaning of Article
12 has to be judged with reference to the parameters fixed by the Supreme Court in Ramana Dayaram Shetty Vs. International Airport Authority
of India and Others, ; Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , Executive Committee, U.P. Warehousing Corporation
Vs. Chandra Kiran Tyagi, , Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, , Miss Raj
Soni Vs. Air Officer in Charge Administration and another, , Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, , Sukhdev
Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram,
Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, The principles that emerge from the above decisions of the
Supreme Court for an entity to be an instrumentality or agency of the State falling within the definition of the Article 12 of the Constitution of India,
are
(1) If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the Corporation is an
instrumentality or agency of Government.
(2) Where financial assistance 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 Government character.
(3) It may also be relevant factor whether the Corporation enjoys monopoly status which is the state conferred or state protected.
(4) Existence of deep and pervasive state control may afford an indication that the Corporation is a state agency or instrumentality.
(5) If the functions of the Corporation are of public importance and closely related to Government functions, it would be relevant factor in
classifying the Corporation as an instrumental ity or agency of Government.
(6) If the department of Government is transferred to a Corporation, it would be a strong supportive of this interference of the Corporation being
an instrumentality or agency of Government.
It is to be noted that the test need not apply only in case of Corporation, but the same test can also be applied to the society registered under the
Societies Registration Act or Co-operative Societies registered under the Co-opertaive Societies Act and the Trust registered under the Tamil
Nadu Act. Even assuming that the writ lies against a private individual for enforcement of a statutory public duty, it is to be seen that a public duty
is cast on the institution and that its action should affect the rights of the members of the public. The question, therefore, arises how far these Trusts
are answerable to the Constitution and in particular to the citizens'' rights enshrined in Part III - or for that matter, Part IV? In ther words, are they
mere private bodies, or do they partake the character of the State? Are they ''authorities'' within the meaning of Article 12 and if so, when do they
become one? If they are not ''authorities'' within the meaning of Article 12, then how are they answerable to, and subject to Part III? Are they to
be treated as instrumentality and agencies of the State and their activity as ''State action''? If so, again, what are the tests to determine and what is
the meaning of ''State action''? Article 12 of the Constitution of India defines the ''State'' for the purpose of Part III - it applies equally to part IV -
in the following words:
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.
It is relevant to note that this Article does not really define the word ''State''. It only provides that ''State'' includes the authorities specified therein.
The definition expressly speaks of the Government and the Legislatures, both at the centre and in the States, and ''all local or other authorities
within the territory of India or under the control of the Government of India.'' The expression ''local authority'' is defined under the General Clauses
Act, 1897. The expression ""other authorities within the territory of India"" occurring in Article 12 of the Constitution fell for consideration for the
first time by the Supreme Court in Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal and Others, . In the above judgment, the Supreme
Court has held that those authorities which are invested with sovereign power, i.e., power to make rules or regulations, and to administer or
enforce them to the detriment of citizens and Ors., fall within the definition of ''State'' in Article 12 and Constitutional or statutory bodies which do
not share that sovereign power of the state are not, ''State'' within the meaning of Article 12 of the Constitution. The Supreme Court has held in
catena of decisions that unless it is shown that in a particular Government company the control of the Government is such that it is deep, pervasive
and unusual, it must be held that one of the important tests laid down by the Supreme Court remains unsatisfied.
Learned counsel for the petitioner has tried to substantiate his contention that the Trust receives financial aid in the form of donations and loans.
Basing on the above, learned counsel has argued that the writ petition itself is maintainable against the Trust as the aid is in the form of loan. He has
vehemently argued that there is a public duty cast upon the respondent Trust to follow the procedure of law in terminating the services of the
petitioner. However, learned counsel for the petitioner was not able to produce any of the terms and conditions governing the appointment of the
petitioner. In this case, even assuming that the Trust receives the money from the Government in the form of a loan or aid, the same is repayable to
the Government as agreed upon by the respondent Trust. Under such circumstances, the loan cannot be termed as aid to the Trust. Perse it is
evident that the control the Government exercises over the Trust is not deep, pervasive and unusual. The instrumentality or agency of the
Government comes in only if functions are closely related to the Governmental functions. In this case, it is not proved that the functions of the Trust
are closely related to the Governmental functions. All the decisions relied upon by the learned counsel for the petitioner relate to the companies
wholly owned by the Government. In some cases, they are governed by the conditions of the contract. Under such circumstances, I have no
hesitation to hold that they are not applicable to the particular circumstances of the case. It is no doubt true that there is no share capital in the Trust
held by the Government and there is no deep and pervasive State control. The Trust does not enjoy monopoly status. There is nothing on record
to show that the functions of the Trust are of public importance and closely relate to the Governmental functions. There is also no transfer of any
Government Department. If a department of Government is transferred to a Trust, it would be a strong factor supportive of the inference of the
Trust being an instrumentality or agency of the Government. Under such circumstances, I have no hesitation to hold that in the absence of the
principles laid down in the decisions of the Supreme Court cited above, the respondents Trust is not a State or instrumentality of the State.
In view of the above observations, the writ petition itself is not maintainable against the respondents Trust. Even though the writ petition is not
maintainable as the services of the petitioner have been terminated for no fault of the petitioner, I feel it just and proper if a direction is issued to the
respondents to pay damages of Rs. 50,000 (Rupees fifty thousand only) to the petitioner within six months from the date of receipt of this order.
With the above observations, the writ petition stands dismissed. No costs.