P PALIWAL Vs. HINDUSTAN ZINC LIMITED

JUDGEMENT

(1.) In D.B. Civil Writ Petition No. 236/1984, following question has been referred to the Larger Bench by the order dated 16.12.2005 passed by the Division Bench of this Court headed by the then Hon'ble Chief Justice and one of us (Hon'ble Mr. Justice Prakash Tatia):

(2.) The facts of the case of D.B. Civil Writ Petition No. 236/1984 are that the petitioner, an employee of the respondent-Company, appointed in the year 1968, faced disciplinary proceedings wherein order of termination of his service was passed on 23.12.1983 (Annex.31) which was challenged by the petitioner by preferring S.B. Writ Petition No. 236/1984 before the single bench of this Court on 11.1.1984. According to the petitioner, the respondent Hindustan Zinc Limited, a company registered under the Companies Act, 1956, is Government of India Enterprise and is an instrumentality of the Union of India and the Union of India completely controls its functions and activities. The respondent-company raised preliminary objection that the respondent-Hindustan Zinc Limited (for short "HZL") is merely a company registered under the Companies Act, 1956 and it is not State within the meaning of Article 12 of the Constitution of India and, therefore, no writ lies against it. In support of this contention before the Single Bench, learned Counsel appearing for HZL Shri D.R. Bhandari relied upon the Division Bench judgment of this Court delivered in the case of Jialal Kapur v. UOI, 1977 WLN(Raj) 61 in which the Division Bench of this Court has opined that HZL under the Metal Corporation of India (Acquisition of Undertaking) Act, 1966 though is a Government company, but is not a State in the definition of Article 12 of the Constitution of India. This issue was considered by the learned Single Judge in somewhat detail and learned Single Judge looked into the background in which the company was formed as well as considered the provisions of Metal Corporation of India (Acquisition of Undertaking) Act, 1965 and Metal Corporation of India (Acquisition of Undertaking) Act, 1966 and Metal Corporation (Nationalization and Misc. Provisions) Act, 1976. The learned Single Judge observed that after re-acquisition retrospectively and vesting the same in the Central Government, the Nationalization Act envisaged the placing of management of the undertaking under a Government company. The learned Single Judge was of the view that aforesaid aspect of the matter appears to have not been raised before and examined by the Division Bench in the case of Jialal Kapur and it is appropriate that the issue about the status of HZL be re-examined by the Division Bench as the learned Single Judge himself could not have taken the view contrary to the view expressed by the Division Bench in Jialal Kapur's case (supra).

(3.) The background in which this question has been referred to the Larger Bench was necessary because of the reason that the learned Counsel appearing for the respondent-HZL has challenged the reference itself alleging it to be in violation to rules 55 and 59 of the Rules of High Court of Judicature for Rajasthan, 1952 and further challenged the reference on the ground that in fact the learned Single Judge had no jurisdiction to refer the matter to the Larger Bench, as the learned Single Judge was bound by the Division Bench decision rendered in Jialal Kapur's case(supra) and further, the order referring the matter to the Larger Bench dated 10.5.2005 is not an speaking order passed after considering the issue and further the Division Bench also has not formulated the question for making a reference. We shall be deciding above question also.