MADHAV SAPRE Vs. JAYANT VITAMINS LTD

JUDGEMENT

(1.) BY this petition under Art. 226 of the Constitution of india, the petitioner who was employed as a Project Manager at the relevant time in the factory of respondent No. 1 situated at Ratlam, has challenged his termination order.

(2.) WE heard Shri R. C. Kochatta, learned counsel for the pettioner, who made his strenuous effort to convince this Court that in view of the recent pronouncement of the Apex Court in case of Vidyadhar Pande vs. Vidyut Grih siksha Samiti and others, 1989 MPLJ (SC) 98 = AIR 1989 SC 341 and a Division bench decision of this Court reported in 1989 MPLJ 75 = 1989 JLJ 25, M. D. Awasthy vs. State of M. P. , a writ against a Company can also be issued as according to the learned counsel for the petitioner a noticeable change has come in writ jurisdiction which has been brought about by recent pronouncements of the Apex Court. The learned counsel contended that the respondent Company is a public limited company incorporated under the Companies Act, 1956, and the respondents Nos. 3 and 4 i. e. Madhya Pradesh Audyogik Nigam and Industrial and Investment Corporation of India Ltd. have advanced loans and given financial assistance to the company and because there are nominated Directors of the respondents Nos. 3 and 4 on the Board of Directors of respondent No. 1 for purposes of exercising effective management, administration and control over the respondent No. 1, as such the company is amenable to writ jurisdiction.

(3.) AFTER hearing learned counsel for the petitioner we are of the opinion that the respondent No. 1, neither is a statutory body, nor an authority under article 12 of the Constitution of India. It is an incorporated company under the companies Act. Merely because the respondents Nos. 3 and 4 have advanced loans or financial assistance to the said Company, it will not make the said company an Authority under Article 12 of the Constitution of India or a statutory body as it does not satisfy the test of 'state action' so that it may be deemed to be covered under Article 12, so as to make it amenable to writ jurisdiction. The employment with the respondent No. 1 is not under a public employment, but it is under personal service. Further, merely because the termination order has not been passed by the Board, this will not give any right to the petitioner to approach this Court under Article 226 of the Constitution of india, so as to invoke the extraordinary jurisdiction of this Court on the basis of statutory violation. Before any institution can be said to be a statutory body or authority within the meaning of Article 12 of the Constitution of India, it must be created by a statute and must owe its existence to the statute. There is a distinction between an institution not created by or under a statute but is governed by certain statutory provisions for proper maintenance and administration of its affairs and the one which is created by a statute and owes its existence to the same. Though the Company is incorporated according to the provisions of the Companies Act and after being so registered becomes liable to follow certain Rules, regulations and directions issued under the Act, the company is not created by the provisions of the Act itself. It still remains a body which after having come into existence is governed in accordance with the provisions of certain statute. It does not, therefore, have any statutory character and cannot fall under Article 12 of the Constitution of India. Merely by advancement of loan or financial assistance by the respondents Nos. 3 and 4 to the Company, the Company cannot be said to be aided, owned or controlled by the Government or the Authority.