AFTAB RAM Vs. STATE OF J&K

JUDGEMENT

(1.) THESE petitions were pending before a Single Judge of this Court but by means of an order dated 22nd August 1969 it was thought desirable to constitute a Full Bench to decide the following point of law, which arose in these cases: - "Whether or not a writ lies against a Corporation or a Government undertaking even if the Government owns the said undertaking or corporation completely."

(2.) THE brief facts which are necessary for the disposal of these writ petitions and the point of law referred are that the petitioners are permanent servants employed in the Government Arts Emporium. By S. R. O. 27 of 1963 dated 3 -10 -1963 sanction was accorded by the Government to the formation of a Company under the Jammu and Kashmir Companies Act, 1977 for the running of the industrial undertakings, which included 21 establishments, one of them being Kashmir Government Arts Emporium. The Articles and Memorandum of Association of the said Company were registered under the said J & K Companies Act and this Jammu and Kashmir Industries was thus a private limited company. The revenues and expenditures of Kashmir Government Arts Emporium are being shown in the Government Annual Budget. The J & K Civil Servants (Classification, Control and Appeal) Rules 1956 were made applicable to this Company. The petitions quote certain Articles of Association and in particular emphasis is laid on Article 73(5) which lays down how appointments are to be made in this company. The power of appointment is given to the Directors except in the case of an employee whose pay is more than Rs. 2,000 per mensem, which has to be made by the Sadar -i -Riyasat (now Governor) and appointments carrying a salary of more than Rs. 500 per month have to be made with the consultation of or on the recommendation of the Public Service Commission. The petitioners continued in the service of this company till 1967 when two orders were passed by the Manager, Head Office of the Government Arts Emporium. (1) HO/422 dated 12 -4 -1967 and (2) dated 8th May 1967 which form the two annexures to these petitions. By the first order the petitioners were given notice that as on a particular date they would reach the age of 55 years, their services would be terminated from the particular date ending with one months notice and in the second order it was said that as the Kashmir Arts Emporium was a temporary organization and the services of the petitioners were of a temporary nature, their services would be no longer required, they were as such terminated with one months notice as already given. According to the petitioners these two orders are inconsistent, self -contradictory and ultra vires. The petitioners claim to be the permanent Government servants whose services could not be terminated in the manner as has been done without allowing them any pension, gratuity etc.

(3.) WE do not go into the other averments made in the petitions or the details of the objections taken by the respondents. One of the main objections on behalf of the respondents is that a writ cannot be issued against the General Manager, Government Arts Emporium or even the State because the petitioners are employees of a private limited company. The main emphasis on behalf of the respondents is on the plea that the Kashmir Government Arts Emporium is now a part of the Jammu and Kashmir Industries Private Limited which is a private limited company and therefore not amenable to the writ jurisdiction of this court. It is not however denied that this company is wholly owned, managed and run by the Government. Therefore, the question that has been referred to the Full Bench. The learned counsel for the petitioners have argued that under Article 12 of the Constitution of India the words "the State" includes the Government and....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, and under Article 226 writ can be issued "to any person or authority including in appropriate cases any Government, within those territories directions, order or writs......" Article 12 of the Constitution of India has been applied to the State of Jammu and Kashmir and Article 226 corresponds to Art. 103 of the Constitution of Jammu and Kashmir, which reads as under: - "The High Court shall have power to issue to any person or authority, including in appropriate cases any Government within the State, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purpose other than those mentioned in Clause (2 -A) of Art. 32 of the Constitution of India."