BHUPENDRA JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners are office bearers of the Unions. They have filed writ petition for issuance of a writ in the nature of mandamus commanding upon the authorities of the State to absorb/adjust the services of the officers/workmen and other employees of the Bihar State Agro Industries Corporation Ltd. who are likely to be retrenched after disposal of winding up petition filed by the Stale of Bihar, Department of Agricultural and also for commanding the authorities of the State to make sufficient fund available to meet the liability of the outstanding arrears of salary/allowances of the employees of the aforesaid Corporation till the date their services are absorbed/adjusted.

(2.) THE Bihar State Agro Industries Development Corporation Ltd. was incorporated under section 617 of the Indian Companies Act, 1956 on 30th March, 1966. The Board of Directors on its first meeting held on 20.7.1966 had resolved that the service conditions of the employees of the Corporation be governed by Bihar Service Code and the Bihar T. A. Rules approved by the Governor of Bihar and presently the service conditions are governed under the provisions of the industrial Employment (Standing Orders) Act, 1946. The employees of the Corporation were not being paid their salaries with effect from May, 1993 as the Corporation pleaded its inability to meet the liability on the ground of financial stringency. The petitioners filed C.W.J.C. No. 5015/96 for issue of direction to the respondents to pay their salaries etc. and also for direction to the State Government to make sufficient fund available to facilitate the payment. The said writ petition and C.W.J.C. No, 1718/94 in which similar question was involved were taken up for hearing by a Full Bench of this Court. The Full Bench taking into consideration the distinction between the Corporation created by the Statute and the Corporation/Company incorporated under the Indian Companies Act and different decisions of the Apex Court came to a conclusion that the Corporation created by the Statute may be called an agent of the State but the Corporation/Company engaged in trade or business, acting on its own, cannot be called agent of the State irrespective of the nature or degree or control by the Government department and its employees cannot be called employees of the State so as to bind the State Government to make it liable for payment of salary and accordingly held that the petitioners cannot maintain their claim against the State of Bihar. They are entitled to reliefs only against the respective Corporation and direction was issued to the State Government to file winding up petition in the Court if the two Corporations are not able to pay salary to their employees and dismissed the writ petitions vide judgment and order dated 19.3.1997, Annexure -2. Against the said judgment and order of the Court the petitioner filed S.L.P. before the Apex Court and S.L.P. was dismissed on 30.7.1997, Annexure -3.

(3.) THE petitioners now nave filed writ petition for issue of direction to the authorities of the State to absorb/adjust the services of the officers/workmen and other employees of the Corporation and also for direction to the authorities of the State to make sufficient fund available to meet the liabilities for payment of arrears of salary and allowances etc. to the employees of the aforesaid Corporation on the ground that dismissal or S.L.P. in limine by the Apex Court by non -speaking order cannot be treated judgment of the Supreme Court on the merit of the case. The employees of the Corporation are facing hardship. The Corporation no doubt was incorporated under the Indian Companies Act, 1956, but it was never allowed to function independently, rather it has been functioning throughout according to executive direction of the State Government in the matter of its administration, financial and managerial control. The Addl. Secretary of the Department of Agriculture, Government of Bihar wrote to the Commissioner -cum - Secretary, Public Bureau of Enterprise Department of Finance, Government of Bihar vide its letter dated 15.9.1993 that since the Corporation has reached at the verge of closure and the employees have not been paid their salary, services of the officers and other employees of the Corporation be adjusted ana absorbed on the vacant post of the State Government. There was some correspondence between the different authorities of the Government and the Corporation on the point of absorption/adjustment of the employees. These letters have been annexed as Annexures -4, 5, 6, 7, 8, 9 & 10 the writ petition.