JUDGMENT The petitioners who are 168 in number have filed this application, inter alia, praying for issuance of a writ of or in the nature of mandamus directing the respondents to grant and/or pay and/or release and/or disburse the Dearness allowances for July 1993, December 1993 and May 1994 respectively at the rate of 11%, 12% and 9% as also for a direction to disburse D.A. for the year 1994 according to the existing norms of payment of D.A. 2. The petitioners are supervisory staff of Westing House Saxby Farmer Ltd. (hereinafter referred to as 'the Company'). 3. In April 1985 the Controller of Public Undertaking's Ex-Officio Deputy Secretary Government of West Bengal issued a memorandum dated 29th April, 1985 which is contained in Annexure 'A' to the writ application wherein, inter alia, it was stated :- “1) If the existing total D.A. elements be in excess of the total D.A. element of corresponding State Government employees such excess should be adjusted against the amount of further additional dearness allowance as per enclosed table. No additional fund w ill be given to the company on this account.” By another memorandum dated 27th June, 1990 the Controller made a further declaration, the relevant portion whereof reads thus :- “1) If the existing total D.A. element (prior to 1.6.90) be in excess of the total D.A. element (prior to 1.6.90) of corresponding State Government employees, who are enjoying the pre-revised scale, such excess should be adjusted against the amount of further A.D.A. admissible as per enclosed table. 2). The basic pay as mentioned above shall be the grade pay drawn by the employees/officers in their respective revised scale of pay of 1981 and shall not include Special Pay, Dearness Pay, Personal Pay, Administrative Pay and other categories of pay, if any, save and except grade pay provided that in the case of employees/officers who have not opted for revised scale of pay as per revision of pay & Allowance Rules with effect from 1.4.70 the basic pay will mean grade pay plus D.A. as was being drawn by them on 31.3.70. 3) In case of employees/officers who have not opted to come under the revised scales of pay of 1981 due to some reason or others, the basic pay shall mean the grade pay in the basic grade or New intermediate selection Grade as the case may be, plus ad hoc pay, interim pay, qualification pay, special allowance, administrative allowance and special pay, if any, which have not been retained in additional to the grade pay of the posts/services in the revised scale of pay of 1981. 4) The Governor has further pleased to decide that for daily rated workers, if any, under Westing House Saxby Farmer Ltd,. whose wages are not regulated by any statutory provision like the minimum wages Act, etc. there will be a further ad hoc increase in their existing daily rate of wages by Re. 1/-. (Rupee one) only with effect from 1.6.90. 5) The additional expenditure will be borne by the Westing House Saxby Farmer Ltd., out of their own resource or out of the financial assistance that has already been provided for them in the Current Year's budget and no additional financial assistance will be given to them on account of sanction of further Additional Dearness Allowance.” 4. By a letter dated 5th February, 1993 the Government directed that the D.A. sanctioned thereby would be drawn............to the ............; and down therein. However, it was stated:- "The additional expenditure will be borne by the undertakings from their own resources that have already been provided to them in the current year's budget and no additional financial assistances will be given to them on account of further additional dearness allowances sanctioned herein." 5. Mr. A.P. Chatterjee, learned Counsel appearing on behalf of the petitioners has raised a short question in support of this application. The learned Counsel submits that keeping in view of the aforementioned documents the respondents should be directed to pay D.A. up to January 1994 together with arrears thereof at the Government rate and from January 1994 the D.A. may be directed to be paid at the rate computed on the basis of Consumer Price Index. 6. The learned Counsel submits that keeping in view of the aforementioned documents the respondents should be directed to pay D.A. up to January 1994 together with arrears thereof at the Government rate and from January 1994 the D.A. may be directed to be paid at the rate computed on the basis of Consumer Price Index. 6. The learned Counsel submits that from the materials on record it would appear that the State Government had been allotting money to the respondent company in its budget and thus there is no reason as to why the State would not pay the same amount of D.A. which it is paying to its own employees. 7. Mr. Chatterjee submits that the prayers made in this writ application are principally as against the State of West Bengal and not as against the respondent company and this court should direct the State Government to make payment of Additional D.A. to the petitioners. 8. Mr. Amitava Chowdhury, the learned Counsel appearing on behalf of the respondent company submitted that the company is not a 'state' within the meaning of Article 12 of the Constitution of India. The learned Counsel submitted that the petitioners have no legal right to obtain any writ of or in the nature of Mandamus, as has been prayed for as they have no legal right in relation to their alleged claim of dearness allowance. It is submitted that Government of West Bengal took over the company only with a view to help the workmen. The learned Counsel submitted that the company is engaged in a commercial pursuit and it does not exercise any monopoly in its trade and not exercise any governmental function. The learned Counsel in support of his aforementioned contention has relied upon (1) Sri Anupam Ghosh. v. Union of India and Ors. reported in 1991(2) CHN 451 ; (2) Chander Mohan Khanna v. The National Council of Educational Research & Training and Ors. reported in AIR 1992 SC 76 and (3) Panchra Mayurakshi Cotton Mills Employees’ Union and Ors. v. State of West Bengal and Ors. reported in 1993(2) CLJ 176 . 9. It was further submitted that the non-supervisory employees were being paid the full D.A. in terms of consumer price Index and the supervisory employees were getting Government D.A. at the Government rate. 10. v. State of West Bengal and Ors. reported in 1993(2) CLJ 176 . 9. It was further submitted that the non-supervisory employees were being paid the full D.A. in terms of consumer price Index and the supervisory employees were getting Government D.A. at the Government rate. 10. The learned Counsel had drawn my attention to the pay Revision Committee's report and submitted on the basis thereof that the same having been accepted by the State, the petitioners are bound thereby. 11. It is submitted that the respondent company has been suffering losses and the State in the documents referred to in the writ application itself as also in the letter dated 5th February, 1993 which is contained in Annexure III to the Affidavit-in-Opposition clearly directed that financial burden to pay additional D.A. must be borne by the company. The learned Counsel contends that except in one year the company had been suffering losses since 1969. According to the learned Counsel, even in industrial adjudications, if a company is unable to bear the financial burden, fair wages and/or D.A. cannot be awarded. 12. Reliance in this connection has been placed upon (4) Precision Bearings India Ltd. v. Baroda Mazdoor Sabha & Anr. reported in 1977(14) SCLJ 164 and (5) Workmen of Gujarat Electricity Board v. The Gujarat Electricity Board, Baroda reported in AIR 1970 SC 87 and (6) The Workmen represented by Secretary v. The Management of Reptakos Breft & Co. Ltd. and Anr. reported in AIR 1992 SC 504 . 13. Mr. Chatterjee, in reply, however submitted that a writ application is maintainable against the respondent company and in support thereof he has relied upon two judgments and orders passed by Ajit Kumar Sengupta, J. dated 10.3.94 in C.O. 2320 (w) of 1988, (7) Ajit Banerjee & Ors. v. The Managing Director; Westing House Saxby Farmer Ltd. & Ors. and dated 26th October, 1990 in C.O. No. 5396 (w) of 1984 in (8) Swapan Dasgupta v. M. Westings House Saxby Farmer Ltd. and submitted that the company is a State within the meaning of Article 12 of the Constitution of India. 14. v. The Managing Director; Westing House Saxby Farmer Ltd. & Ors. and dated 26th October, 1990 in C.O. No. 5396 (w) of 1984 in (8) Swapan Dasgupta v. M. Westings House Saxby Farmer Ltd. and submitted that the company is a State within the meaning of Article 12 of the Constitution of India. 14. It appears that Chairman-cum-Managing Director of the respondent company in terms of his letter dated 5.4.84 addressed to the Controller of public Undertakings, Ex Officio Deputy Secretary, stated that the question of payment of D.A. to the Supervisory Staff merits sympathetic consideration so as to enable the company to compensate the erosion of the real wages of the concerned employees on account of steep rise in the cost of living index. By a letter dated 18th August, 1993 the Joint Secretary asked the Managing Director of the company for his 'judged views' with regard to the following :- "It is presumed that it has been proposed to sanction the addl. instalment of D.A. at State Govt. rates to the Supervisory staff only who have not been allowed the benefit of pay revision and are in receipt of D.A. at State Govt. rates and that the Managerial staff have been excluded for the purpose Subject to the confirmation of the presumption, we may, following the existing practice, agree to allow the benefit of the addl. instalment of D.A, as recently sanctioned to the State Govt. employees to the Supervisory Staff only w.e.f. 1.7.93 provided the expenditure can be met out of the own resources of the Undertaking." 15. The first question, therefore, which arises for consideration in this application is as to whether the company is a State within the meaning of Article 12 of the Constitution of India. It is not disputed that the State of West Bengal with a view to save the Westing House Saxby Farmer Private Ltd. from closure purchased 51% share in 1969 for a token price and the name of the company was changed to Westing House Saxby Farmer Limited. It is not disputed that the State of West Bengal with a view to save the Westing House Saxby Farmer Private Ltd. from closure purchased 51% share in 1969 for a token price and the name of the company was changed to Westing House Saxby Farmer Limited. The press Hanout on Saxby Farmer on the aforementioned subject states :- "As, however, the closure of the firm would cost about 1800 employees their employment and as the State would lost on an old shopisticated industry and as a very large number of small scale industries linked with the firm would lose their customs, if Saxby Farmer closed down, the State Government finally decided to take over 51% shares of the company on their own, with the assurance from the Govt. of India for financial accommodation they may be necessary in putting back the firm on its feet. The creditors of the company have agreed to scale down their dues and the workers have also assured full co-operation and the observance of an industrial truce." Pursuant to the said decision of the State of West Bengal the Board of Directors of the erstwhile company also passed a resolution on 19.7.1969 as regards transfer of shares to the State of West Bengal. The State of West Bengal advanced loans amounting to Rs. 75 lakhs to the company which were converted into Equity shares under Section 81(4) of the Companies Act, 1956. The State of West Bengal advanced other loans also to the company. At present the State of West Bengal holds 87.75% of the shares and the rest are being owned by Westing House Brakes & Signals Ltd. From the Articles of Association of the Company, it appears that the same is an engineering goods producing company. It is a business concern and does not enjoy any mono ply in respect of the business carried out by it nor does it exercise any governmental function. The company had been suffering losses since 1969 and except for one year i.e. in the year 1975-76 in which year it made profit of Rs. 2,32,000/-. The losses suffered by the company from the year 1982-83 are stated below year wise. Year. Loss. 1982-83 Rs. 3.51 crores. 1983-84 Rs. 4.94 crores. 1984-85 Rs. 4.19 crores. 1985-86 Rs. 6.49 crores. 1986-87 Rs. 7.08 crores. 1987-88 Rs. 8.79 crores. 1988-89 Rs. 8.23 crores. 1989-90 Rs. 9.93 crores. 1990-91 Rs. 2,32,000/-. The losses suffered by the company from the year 1982-83 are stated below year wise. Year. Loss. 1982-83 Rs. 3.51 crores. 1983-84 Rs. 4.94 crores. 1984-85 Rs. 4.19 crores. 1985-86 Rs. 6.49 crores. 1986-87 Rs. 7.08 crores. 1987-88 Rs. 8.79 crores. 1988-89 Rs. 8.23 crores. 1989-90 Rs. 9.93 crores. 1990-91 Rs. 10.23 crores. 1991-92 Rs. 11.43 crores. 1992-93 Rs. 14.00 crores. 1993-94 Rs. 15.33 crores. 16. It is not in doubt or dispute that before a writ petition is held to be maintainable against the company incorporated under the Indian Companies Act, it must fulfill the tests laid down by the Supreme Court of India in its various decisions so as to be held to be "other authority" within the meaning of Article 12 of Constitution of India. 17. In Anupam Ghosh v. Union of India reported in 1991(1) Calcutta High Court Notes 451, G.N. Roy, J. (as His Lordship then was) speaking for a division bench of this court held that M/s. Andrew Yule & Co. Ltd. which is a Government company is not a 'State' within the meaning of Article 12 of the Constitution of India. The learned Judges inter alia, held that following factors must be taken into consideration cumulatively for the purpose of arriving at a decision as to whether a company is a 'state' within the meaning of Article 12 of the Constitution of India :- 1. financial resources of the State being the chief funding source; 2. functional character being governmental in essence; 3. plenary control residing in Government; 4. prior history of the same activity having been carried on by government and made over to the new body; 5. some element of authority or command. 18. There cannot be any doubt that for the purpose of coming to conclusion as to whether a company is a 'State' or not, there cannot be any straight jacket formula. The company had been doing its own business. Of course the State of West Bengal also provides for substantial grant in its budget. It is not denied that the company is a government company under the provisions of the Companies Act but the entire capital of the company is not owned by the State Government. The company does not enjoy and monopoly in the field of its trading activities and it competes with other companies in the field of its business. It is not denied that the company is a government company under the provisions of the Companies Act but the entire capital of the company is not owned by the State Government. The company does not enjoy and monopoly in the field of its trading activities and it competes with other companies in the field of its business. It is trading activities are not of great public importance per taking the character of the state function. 19. Anupam Ghosh's case (supra) was followed by a learned Single Judge in Panchra Mayurakshi Cotton Mills Employees’ Union & Ors. v. State of West Bengal reported in 1993(2) CLJ 176 and (9) Rabindra Nath Sinha v. M/s. Andrew Yule & Co. Ltd. and Ors., reported in 1993(2) CHN 328 . 20. In Chander Mohan Khanna v. The National Council of Educational Research & Training & Ors., reported in AIR 1992 SC 76 , the Supreme Court held that National Council of Educational Research & Training is not a State within the meaning of Article 12 of the Constitution of India. The Supreme Court, inter alia, held that the activities of the said organisation are not wholly related to the Governmental function and its affairs are conducted by Executive Committee which is entitled to enter into arrangement that Government, Public or Private Organisation or individuals in furtherance of the objectives for implementations of its programmes. The funds of the NCERT consist of:- (i) grants made by the Government (ii) contribution from other sources and (iii) income from its own assets. 21. The Supreme Court referred to its earlier decision in (10) Takraj Vasandhi alias K.L. Basandhi v. Union of India reported in AIR 1988 SC 469 wherein it was stated :- "In a Welfare State............Governmental control is very pervasative and touches all aspects of social existence.... A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion". 22. It further noticed the decision of the Constitution Bench in (11) Sabhajit Tewari v. Union of India reported in AIR 1975 SC 1329 . 23. In (12) Dr. Amar Chandra Saha v. The President, Calcutta Society for Prevention of Cruelty to Animals & Ors. reported in 1993(1) Cal. 22. It further noticed the decision of the Constitution Bench in (11) Sabhajit Tewari v. Union of India reported in AIR 1975 SC 1329 . 23. In (12) Dr. Amar Chandra Saha v. The President, Calcutta Society for Prevention of Cruelty to Animals & Ors. reported in 1993(1) Cal. L.T. (HC) 137 : 96 CWN 1086, it was held that Calcutta Society for Prevention of Cruelty to Animals is neither a State nor instrumentality or agency of State within the meaning of Article 12 of the Constitution of India. 24. In (13) AIR 1995 Delhi 44, the Delhi High Court held that National Co-operative Consumer Federation Limited is not a State within the meaning of Article 12 of the Constitution of India. 25. In (14) Bihar State Co-operative Marketing Union Ltd. v. Indian Farmers Fertiliser Co-operative & Ors. reported in 1994 (2) BLJ 563 , it was held that the management of the respondent No. 1 having no public duty, the writ petition was not maintainable. 26. It is true that in two of its earlier decisions referred to hereinbefore Ajit Kumar Sengupta, J. entertained a writ application filed by the employees of the respondent company. However, a perusal of the said judgment show that neither any question in that report was raised nor considered by the learned Judge. 27. In the aforementioned case, the learned Counsel appearing for the company was remiss in bringing to the Court's notice the basic feature of the company at regards its business activities etc. as also the amount of control of the State Government over the samed nor the decisions of the division bench of this Court as also the Supreme Court of India and other High Courts were brought to his Lordship's notice. The said decisions, therefore, must be held to have passed sub-silentio and thus the same does not constitute any binding precedent. 28. For the reasons aforementioned no writ can be issued as against the company. 29. However, in this case no rule has yet been framed relating to fixation of pay. 30. The State, from the letters referred to hereinbefore evidently had been sanctioning D.A. and variable D.A. However, it had all along been insisting that the respondent company must bear the financial burden to pay the increased D.A. 31. 29. However, in this case no rule has yet been framed relating to fixation of pay. 30. The State, from the letters referred to hereinbefore evidently had been sanctioning D.A. and variable D.A. However, it had all along been insisting that the respondent company must bear the financial burden to pay the increased D.A. 31. It is an irony of fate that although the State of West Bengal as also the company are aware of the difficulties faced by the supervisory staff but the increase in D.A. is not being paid to them only on the ground of financial constraints. The Managing Director of the respondent company in its letter dated 4th May, 1984 addressed the Joint Secretary to the Public Undertakings Department categorically stated :- "On scrutiny of the ‘Pay Committee Report’ received from Public Undertakings Deptt. vide letter Ref. No. : 882/Estt/3E-1/93, dated 17.1.94, it appears that there will be reduction in take home pay’ in respect of all employees apart from other difficulty like stagnation of pay, etc. Therefore, the employees have refused an masse to accept the recommendation of the Pay Committee. The matter was discussed in the 739th meeting of the Board of Directors held an 30.3.94. The members appreciated this and resolved that in the circumstances where "take home pay" of the Staff and workmen would be reduced, the Board cannot recommend implementation of such report and the matter be referred to Government for re consideration. Accordingly, I would request you to kindly place the matter before Government for review and suitable amendment of the Report." 32. A bare perusal of the said letter would show that the matter relating to acceptance of the report of the Pay Committee is pending reconsideration by the Government. 33. However, this court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot give any direction which may put any extra financial burden upon the State of the respondent company. 34. In Precision Bearings India Ltd's. case (supra), the Supreme Court held that in considering the question of D.A., the capacity to pay the company is one of the most important consideration. 35. 34. In Precision Bearings India Ltd's. case (supra), the Supreme Court held that in considering the question of D.A., the capacity to pay the company is one of the most important consideration. 35. In Gujarat State Electricity Board's case (supra) the Supreme Court held that if the industry is paying minimum wages, the claim for fair wage or living wage should be considered upon taking into consideration the capacity of the industry to pay as the same is the very important factor and the burden above the minimum wages can only justifiably be imposed if the industry is capable of meeting that extra burden. 36. In the Workmen represented by Secretary v. The Management of Reptakos Brett & Co. Ltd. and Anr., reported in AIR 1992 SC 504 , the Supreme Court observed :- “The ratio which emerges from the judgments of this court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage. But in an industry or employment where the wage structure is at the level of minimum wage, no such revision at all, is permissible-not even on the ground of financial stringency. It is, therefore, for the management which is seeking restructuring of D.A. Scheme to the disadvantage of the workmen to prove to the satisfaction of the Tribunal that the wage structure in the industry concerned is well structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage structure”. 37. However, the State is also a major share-holder, of the company. In my opinion, therefore, the State should take a decision at an early date with regard to the resolution of the petitioners as communicated in the Managing Director of the respondent No. 2 in his letters as noticed hereinbefore and take a final decision with regard to the review of the report of the Pay Committee at an early date. It would be in the fitness of things that the Government as a Welfare State should also consider the desirability of making such funds available to the company so as to enable it to pay the just dues to the petitioners by way of D.A. and Variable D.A. 38. It would be in the fitness of things that the Government as a Welfare State should also consider the desirability of making such funds available to the company so as to enable it to pay the just dues to the petitioners by way of D.A. and Variable D.A. 38. These observations are being made, in view of the peculiar facts and circumstances of this case, although, keeping in view of the position of law, as noticed hereinbefore, it is not possible for this Court to issue any specific direction in this regard. This application is, thus disposed of, but in the facts and circumstances of this case there will be no order as to costs.