JUDGMENT
Shiv Kumar Sharma, J.
1. Challenge in these appeals is the order dated May 26, 2003 of learned Single Judge whereby writ petitions filed by the ks were dismissed and it was held that the appellants were not entitled to claim party with hat of the employees of the Hindustan Copper Ltd. and Khetri Copper Complex (Respondents No. 1 and 2).
2. It is averred in the writ petitions by the appellants that the Hindustan Copper Limited (respondent No. 1 ) is a company registered under the Companies Act and solely owned by the Government of India and Khetri Copper Complex (respondent No. 2) is unit of respondent No. 1. The respondents No. 1 and 2 are ‘State’ under Article 12 of the Constitution. Copper Kalyan Trust (Respondent No. 3) was created by the respondent No. 1 for the benefit generally of the employees of respondent No. 1 including other persons residing at Khetri Nagar in connection with their business and matters ancillary thereto and make available to them at cheap and reasonable prices the necessary items of daily use and articles required for better living of at Khetri Nagar. The trustees of respondent NO. 3 are nominated by the respondent No. 1 and they are senior officers of the respondents No. 1 and 2. The trust is wholly managed by Senior Officers of the respondents No. 1 and 2 who are trustees of respondent No. 3. The respondent No. 3 is also instrumentality agency of the State. The appellants are Salesman, Accountant, Mechanic and Delivery boy working with the respondent No. 3 from 1984, 1985, 1986 and 1987. The posts of Accountant, Salesman, Mechanic and Delivery Boy of respondent No. 3 are equivalent to the posts of Accountant. Salesman, Mechanic and Delivery Boy of respondent No. 2. The pay scales of Accountant, Salesman, Mechanic and Delivery Boy of respondent No. 2 are 1420-70-2470; 1240-37-1795; and 1160-27-1565 and the respondent No. 3 has fixed the appellants for the posts of Accountant. Salesman, Mechanic and Delivery Boy on the fixed pay of Rs. 805 – 690 – 690 and 510/- as consolidated pay. The appellants submit that the duties of the posts of Accounts, Sales, Mechanic and Delivery Boy of the respondent No. 3 and the respondent No. 3 are identical and their status and functions are same, still the pay provided to the appellants is much less than the employees of the respondent No. 2 who are performing identical duties. The appellants submit that the State Instrumentalities and State Enterprises are bound to follow the principles of ‘equal pay for equal work’ and denial of equal pay to the appellants by the respondent No. 3 is arbitrary discriminatory and irrational and violative of the fundamental rights guaranteed by the Constitution. In not granting the pay scale equal to the employees of the respondent No. 3 to the appellants is illegal, discriminatory and in violation of the provisions of Articles 14, 16, and 39(d) of the Constitution.
3. In the reply to the writ petition the respondents No. 1 and 2 stated that the respondent No. 3 was not created by respondent No. 1. It is an independent body having no connection with respondent No. 1 and respondent No. 2. The trust is running fair price shops of necessary items of daily use and articles for benefit of public of Khetri Nagar, whereas Hindustan Cooper Ltd. is an Organization which is engaged in the production/manufacture of Copper. The respondents No. 1 and 2 do not have any direct or indirect control over the management and affairs of the Trust. The trust is not governed by the rules, regulations or directions of respondents No. 1 and 2 not does the respondents No. 1 and 2 exercise any control and supervision over the management, administrations and business of the trust. On the contrary the respondent No. 2 is also one of the customers of the trust. The respondents NO. 1 and 2 also purchase many articles from the trust through quotations and regular purchase procedure. The payment is made by the respondents No. 1 and 2 to the trust in routine manner. The respondents No. 1 and 2 have no control over the budget and finance of respondent No. 3. There are no equivalent posts of accountants. Sales Men and Delivery Boys under respondents No. 1 and 2 with that of the trust. No posts under respondent No. 1 are equivalent to that of the trust in terms of duties, functions and nature of duties and assignments because respondent No. 1 do not deal in any trading activities which similar to that of trust. The respondents No. 1 and 2 denied the status of respondent No. 3 being a State Instrumentality and principles of equal pay equal work are not attracted in the present case.
4. The respondent No. 3 in the reply averred that the trust was created only as a welfare measure to hold the price line in Khetri Nagar Market. The trust is not registered either under the Public Trust Act or under the Societies Registration Act. It is admitted that the executive director of the Khetri copper Complex is the author of the trust but the affairs of the trust are only controlled by the Board of trustees. The trustees are competent to make, frame and enforce the rules and regulations for the proper administration and management of the commercial and other activities of the Trust. The trust is not a part of respondent No. 1 and on the contrary the respondent No. 1 is one of the customers of the trust, like any other individual customers. The trust has taken shops on rent from respondent No. 1 and it has its own working capital and assets. The respondent No. 1 does not exercise any control, supervision over the trust. It cannot even issue any direction to the Trust. The trustees are not nominated by the respondent No. 1 but it is only the Board of Trustees that can appoint the trustees. The respondent No. 1 has no say on interference in the matter of appointment of trustees. It is not a State or instrumentality agency of the State.
5. The appellants filed rejoinder to the reply reiterating the facts stated in the writ petitions.
6. A preliminary objection has been raised on behalf of respondents that no writ can be issued against respondent No. 3 Copper Kalyan Trust as it is not a ‘State’ or instrumentality or agency of the State under Article 12 of the Constitution. It is canvassed by learned Counsel for respondent that the respondent No. 3 is a trust created by the employees of respondent No. 2 and it has not been created by respondent No. 1. The object of the trust is to provide necessary items of daily use for the public of Khetri and employees of respondent No. 2. Respondent No. 1 and 2 do not control the trust in anyway. The trust was created with a fund of Rs. 10,000/-. The income and expenditure of the trust are not controlled by respondents No. 1 and 2. The trust is not registered under the Public Trust Act or under the Societies Registration Act and it has been created for running fair price shops for the benefits of residents of Khetri at large and employees of respondent No. 2. The trust is not a part of respondent No. 1 directly or indirectly. On the contrary even the respondents No. 1 and 2 are the customers of the trust like any other individual. The trust is running fair price shops and it is having its own capital and interest and it has no supervision and control by respondents No. 1 and 2. The trust does not fulfill the tests laid down of the Hon’ble Supreme Court in Ramana Dayarai Shetty v. International Airport Authority being a ‘State’ or agency or instrumentality of State within the meaning of Article 12 of in as much as; (a) The trust is not a statutory or official body and statutory duty is imposed on it. (b) it is an autonomous body and Government holds no capital, (c) It does not receive any financial assistance from Government or Hindustan Copper Limited, (d) There is no control whatsoever, what to say of deep and purchase of the State Government, (e) The functions of the Trust are not at all related to Government function. Reliance is also placed on VST Industries Ltd. v. IST Industries Workers’ Union (2001) 1 SCC 298, G. Bassi Reddy v. International Crops Research Institute , General Manager Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad , S.S. Rana v. Register Cooperative Societies 2006 AIR SCW 3723, State of Karnataka v. KGSD Canteen Employees Welfare Assn. , Grih Kalyan Kendra Workers’ Union v. Union of India , V. Markendeya v. State of Andhra Pradesh , Federation of All India Customs and Central Excise Stenographers v. Union of India , State of West Bengal v. Deb Kumar Mukherjee , State of WB v. Had Narayan Bhowal , State of Rajasthan v. Gopi Kishan Sen , Principal Industrial Training Institute v. Abhay Kumar Srivastava 1995 Supp. (4) SCC 617, State of U.P. v. J.P. Chaurasia . K. Vasudevan Nair v. Union of India 1991 Supp.(2) SCC 134, Union of India v. Pradip Kumar Dey and State of Orissa v. Dipti Paul .
7. Refuting the contentions, learned Senior Counsel for the appellants contended that the respondent No. 1 is a company registered under the Companies Act and solely owned by the Government of India and the respondent No. 2 is a unit of respondent No. 1 and hence being a Government company enterprise the respondents No. 1 and 2 are the instrumentality or agency of the State and hence, covered under the definition of the State as defined under Article 12 of the Constitution of India. The respondent No. 3 was created by respondent No. 1 for the benefit generally of the employees of respondent No. 1 including other persons residing at Khetri Nagar in connection with their business and mater ancillary thereto and make available to them at cheap and reasonable price the necessary items of daily use and articles required for better living at Khetri. The trustees of respondent No. 3 are nominated by respondent No. 1 and the nominated trustees are the Senior Officers of the respondent No. 1 and 2. The trust is wholly managed by Senior Officers of respondent No. 1 and 2. The entire control, regulations, management application and administration of the trust property whether capital or income, rent, interest or profit of any kind is in the discretion of trustees. Therefore in view of the purpose of trust, control and management of trust it is clear that the control of respondents No. 1 and 2 indeed so deep and pervasive that all the trustees are nominated by them. They are incharge of general superintendence, direction and control of the affairs of the trust and of its income and property are also wholly controlled by the nominees of respondents No. 1 and 2. Therefore the respondent No. 2 is also an instrumentality agency of the State. The appellants are working on the posts of Accountants from August 21, 1975. The posts of Accountant, Junior Accountant, Salesmen and Helper of respondent No. 3 is equivalent to the posts of accountant. Junior Accountant, Salesman and Helper of respondent No. 2. The pay scales of Accountant, Salesman and Helper of respondent No. 2 are 1420-70-2470; 1240-37-1795; and 1160-27-1565 whereas the respondent No. 3 has fixed the appellants for the posts of accountant. Junior Accountant, Salesman and Helper on the fixed pay of Rs. 805-690/-, 690/-, and 510/- as consolidated pay. The duties of the post of Accountant, Junior Accountant, Salesman and Helper of respondent No. 3 are identical and their status and functions are same still the pay as provided to appellants is much less than the employees of respondent No. 2 who are performing the identical duties. All the State Instrumentalities and State Enterprises are bound to follow the principal of equal pay for the equal work. Denial of equal pay is arbitrary, discriminatory and irrationalnd violative of the fundamental rights guaranteed by the Constitution of India. Reliance is placed on Zee Telefilms Ltd. v. Union of India , National Thermal Power Corporation Ltd. v. Karri Pothuraju , Union Public Service Commission v. Girish Jayanti Lal Vaghela , Randhir Singh v. Union of India and Grih Kalyan Kendra Worker’s Union v. Union of India .
8. We have reflected over the rival submissions and scanned the material on record as well as the case law cited before us. We proceed at the outset to decide the preliminary objection raised by the counsel for the respondents.
9. Article 12 of the Constitution gives an extended meaning to the words “the State” wherever they occur in Part III of the Constitution. Unless the context otherwise requires, ‘the State’ will include not only the Executive and Legislative organs of the Union and the States, but also local bodies as well as ‘other authorities’ which include the ‘instrumentalities’ or ‘agencies’ of the State or bodies or institutions which discharge public functions of the governmental character.
10. In G. Bassi Reddy v. International Crops Research Institute (supra) their Lordships of the Supreme Court considered the following question:
What or who is 1CR1SAT? Was the High Court right in holding that it was no amendable to the writ jurisdiction under Article 226?
It was held in para 26 thus:
The facts which have been narrated clearly show that ICRISAT does not fulfill any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by nor is it accountable to the Government. The Indian Government’s financial contribution to 1CRISAT is minimal. Its participation in ICRISAT’s administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State or other authority as defined in Article 12 of the Constitution.
In para 28 it was further held as under:
A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corpn. v. C.A. Imanual, Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC at p. 698 and VST Industries Ltd. v. Workers’ Union). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely, on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. ; Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian pubic to provide research and training facilities. In Praga Tools Corpn. v. C.V. Imanual this Court construed Article 226 to hold that the High Court could issue a writ of mandamus “to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. The Court also held that: (SCC p. 589, para 6)
An application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute (See Sohan Lal v. Union of India ).
11. In General Manager Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (supra) the question was whether Kisan Sahkari Chini Mills was a State? In that Sahkari Mill 5 members were nominated by the State which include Chairman and Administrator. The State Government was also having share in this Mills, even then their Lordships of the Supreme Court indicated that this Mills was not a State since there was no much financial assistance of the State and the State Government was not having control over it. It was further held in para 9 that “the Mills is engaged in manufacturing and sale of sugar which on the same analogy, could not involve any public function. The Apex Court relied on its earlier judgments in and VST Industries Ltd. v. 1ST Industries Workers’ Union (2001) 1 SCC 298 and held that the manufacturing and sale of cigarette by a private person will not involved any public function.
12. In S.S. Rana v. Registrar Cooperative Societies (supra) the Apex Court observed as under:
It has not bee shown before us that the State Exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one director. It cannot, thus, be said that the State exercises any functional control over the affairs of he Society in the sense hat the majority directors are nominated by the State. For arriving at the conclusion that the state has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely: (1) How the Society was created?; (2) Whether it enjoys any monopoly character?; (3) Do the functions of the Society partake to statutory functions or public functions?; and (4) Can it be characterized as public authority?
13. In Zee Telefilms Ltd. v. Union of India (supra) it was observed that in Article 12 “State” has not been defined. It is merely an inclusive definition. It includes all other authorities within the territory of India or under the control of the Government of India. It does not say that such other authorities must be under the control of the Government of India. The word “or” is disjunctive and not conjunctive. The expression “authority” has a definite connotation and this must receive liberal interpretation. In para 31 of the judgment was indicated as under:
It cannot be denied that the Board does not discharge some duties like selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32, but that does not mean that the violator of such right would go scot-free merely because it or he is not a state. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
14. Having scrutinised the material on record, we notice that respondent No. 3 is a trust, the object of which is to provide necessary item’s of daily use to the general public or Khetri and the employees of Khetri Copper Complex (respondent No. 2). Respondents No. 1 & 2 do not control the trust in any way. The Trust was created with a fund of Rs. 10,000/- and the income and expenditure of trust is controlled by the Trustees and not by respondents No. 1 & 2. The Trust is not registered under the Public Trust Act or Societies Registration Act and it is running fair price shop for the benefits of residents of Khetri at large and the employees of Khetri Copper Complex. It is not a part of respondent No. 1 directly or indirectly. On the contrary the respondents No. 1 & 2 are one of the customers like any other individual, the Trust is running fair price shop having its own capital and assets and it is not under the supervision and control of respondents No. 1 & 2. We are satisfied that respondent No. 3 does not fulfill the tests laid down by the Apex Court in Ramana Dayarai Shetty v. International Airport Authority (supra). The ratio indicated in Zee Telefilms Ltd. v. Union of India (supra) is not applicable to the facts of the instant case. The activities of the Trust cannot be said to be akin to public duties or State functions therefore the trust (respondent No. 3) is not amenable to the writ jurisdiction under Article 226 of the Constitution. We have closely scrutinised the documents appended to the writ petition, upon which learned Senior Counsel laid much stress, but we find that these documents too are of no help to the appellants. An unregistered trust that runs fair price shop for the benefit of residents of entire Khetri City including the employees of Khetri Copper complex does not come within the purview of ‘State’ as defined in Article 12 of the Constitution of India. We thus find merit in the preliminary objection raised by the counsel for the respondents in regard to the maintainability of writ petition.
15. For these reasons, the appeals being devoid of merit stand dismissed without any order as to costs.