SHRI SURENDRA NATH KALITA Vs. ASSAM CO

JUDGEMENT

(1.) In this writ petition under Art. 226 of the Constitution, the petitioner has challenged the order of reduction in rank from the post of Assistant Cashier in the Assam Co-operative Apex Bank Limited, respondent No. 1 to the rank of Sub-staff Grade-B, i.e. Peon. The said order was passed in a departmental proceeding on 19.2. 85 by the Managing Director of the respondent-Bank. Appeal of the petitioner was also dismissed.

(2.) The first point which needs our consideration is whether the respondent-Bank, namely, Assam Co-operative Apex Bank is an instrumentality of the State. The question whether Assam State Co-operative Marketing and Consumers' Federation Limited, which is a Co-operative Society registered under the Assam Co-operative Societies Act, 1949 is an instrumentality of the State or not came up for consideration before this Court and a Division Bench at this Court by judgment and order dated 8. 3. 82 in Civil Rule No. 338 of 1979 answered the question in the affirmative i.e. held that the said Federation is an authority under the State. Mr. Mahanta. learned counsel for the petitioner relying on the above decision and on the basis of materials placed before us urged that the respondent-Bank is an instrumentality of the State and as such amenable to the writ jurisdiction of this Court. On the other hand Mr. Sarma, learned counsel for respondents has urged that in view of the decision of the Apex Court in S.S. Dhanoa Vs. Municipal Corporation, Delhi, A.I.R. 1981 S.C. 1395 the respondent-Bank is not an instrumentality of the State. Mr. Sarma has gone to the extent of saying that in view of the above decision even the decision rendered by the Division Bench of this Court regarding Assam State Co-operative Marketing and Consumers' Federation Ltd. needs reconsideration.

(3.) In the landmark decision of the Apex Court rendered in Ajay Hasia Vs. Khalid Mujib, A.I.R. 1981 S.C 487 the Apex Court expanded the horizon of Art. 12 of the Constitution and in doing so it was held that it is immaterial for determining whether a Corporation is an authority within the meaning of Art. 12 as to whether the Corporation or such body is created by a statute or under a state. The enquiry for this purpose has to be confined as to why the said Corporation had been brought into existence. For deciding this question the Court may lift the veil. The Division Bench of this Court in the aforesaid Civil Rule No. 338 of 1979 following the decisions of the Apex Court in Ajay Hasia (supra) International Airport Authority's case, A.I.R. 1979 S. C. 1628 , and Shom Prakash Vs. Union of India. A.I.R 1981 S.C. 212 summarised the test to be applied in determining the question as to whether a Corporation or body is an instrumentality of the State or not and the said tests are as follows:-