JUDGMENT Ashok Kumar Mathur, CJ. All these appeals and writ petitions involve common questions of law, therefore, they are being disposed of by a common judgment. 2. The main question for determination in all these matters is that whether Balmer Lawrie & Co. Ltd. (hereinafter referred to as the company), a Government company, is a 'State' within the meaning of Article 12 of the Constitution or not? In order to appreciate the controversy involved in the matter one has to see that how this company was born. We have to examine its constitution to find out whether it can be said to be an instrumentality of the State or not. We have to find out that how this company came into existence that is how this company was borne because that will only show that whether it is an instrumentality of the State or not as that is dependent upon its birth mark. In order to find out that how this company came to be borne we have to start from its constitution and that can only reflected from its Memorandum and Articles of Association. The law on the subject has been crystalised by various decisions of the Apex Court bearing on the subject which we shall advert to herein after. In all these cases the constitution of the corporation or the company has always been decisive in the matter. In some cases the Court after examining the constitution of the company/corporation came to the conclusion that it is an instrumentality of the State and in some other cases on the anvil of various tests/touch stones have found that it is not an instrumentality of the State. 3. This controversy is of more than two decades old and since then various decisions of the Supreme Court has laid down various tests to find out whether it is an instrumentality of the State or not. Therefore, in this background we have to begin with how this company came to be constituted. 4. According to the commemorating brochure on completion of 125 years of the company a brief history of the company has been given. It says that 125 years ago two young, adventurous Scotsmen, Stephen George Balmer and Alexander Lawrie, decided to seek their fortunes in India. 4. According to the commemorating brochure on completion of 125 years of the company a brief history of the company has been given. It says that 125 years ago two young, adventurous Scotsmen, Stephen George Balmer and Alexander Lawrie, decided to seek their fortunes in India. It is said that there was a difficulty to resolve whose name should appear first and as the legend goes, in a sporting vein, the issue was decided by tossing a coin. Thereafter, the partnership firm was established on 1st February, 1867. It is said that the company began its operation with tea trading and manning agency and with the passage of time new avenues of trading were added to the company. In early 20th Century the company consolidated its gains despite 'Swadeshi Movement', ravages and the First World War. Thereafter, it added banking and tea warehousing activities. In 1924 the company converted its status from 'partnership firm' to 'private limited company'. After the Second World War the company changed it focus from trading to manufacturing and started manufacturing lubricating grease on behalf of major oil companies like Burma Shell, Caltex, Stanvac, etc. Simultaneously, it took up various engineering activities such as manufacture of steel barrels, electrical switchgears, etc. In 1972 the company faced some difficulty as the business environment had changed rapidly after Independence. It is said that the holding company in UK, Alex Lawrie had lost interest and in 1956 sold 25% of the company share to Indo Burma Petroleum (IBP Co. Ltd.). Few years later in 1968 the company's management passed on to Duncan Brothers. The first chapter of the company came to an end with the divestment of the UK holding company i.e. Alex Lawrie's entire share in favour of IBP Co. Ltd. Thus, in July, 1972, the company became a subsidiary of IBP Co. Ltd. and a Government of India Enterprise under the Ministry of Petroleum. This company came into public sector field in 1972. Ltd. Thus, in July, 1972, the company became a subsidiary of IBP Co. Ltd. and a Government of India Enterprise under the Ministry of Petroleum. This company came into public sector field in 1972. As per the Memorandum and Articles of Association the object of the company is to carryon the business of manufacture of drums, barrels, packages, tanks and containers of every description from steel and other materials; to import, export, buy, sell, pledge, make advances upon or otherwise traffic or deal in goods, wares, merchandise, manufactured and un-manufactured articles, machinery, etc.; to undertake and transact every kind of trust or agency business which an individual person may lawfully undertake or transact, to purchase, built, hire, charter or otherwise own, hold, use and dispose of steam and other ships and vessels and other appurtenances; to carryon business as bankers, capitalists and financiers, etc.; to carryon the business of spinners, weavers, manufacturers, balers and pressers of jute, cotton, silk, wool; to grow cultivate and produce tea, coffee, cocoa, cinchona, rubber, sugar, etc. Likewise, there are many other avenues which have been dealt in the object to the Articles of Association. The authorised share capital of the company is Rs. 30 crores. The share holding pattern of the company is as under : IBP Co. Ltd. 62% Indian Financiers & Insurance Companies 20% General Public 17% Employees 1% 5. As per the Articles of Association which was adopted by a special resolution of the company passed on 30th December, 1958 and became effective from 1st January, 1959, the authorised share capital of the company is Rs. 30 Crores. The company is managed by Board of Directors. Article 7A of the Articles of Association provides : "7A. Notwithstanding anything contained in these Articles so long as the company remains a Government company, the President of India, shall subject to the provisions of Article 6 thereof and section 255 of the Act, be entitled to appoint one or more Directors [including whole time Director(s) by whatever name called] of the Company to hold office for such period and upon such terms and conditions as the President of India may from time to time decide. In the event of any conflict between this Article and Article 47 hereof, this Article shall prevail over the said Article 47." [This Article was adopted by a Special resolution passed on 9th April, 1991] Article 10 of the Articles of Association provides : "Any casual vacancy in the Board shall be filled in at the meeting of the Board of Directors and any person appointed as a Casual Director, shall retain his office so long as the vacating Director would have retained." Article 11 of the Articles of Association provides : "The Board may appoint any person to act as alternate Director for a Director during the latter's absence for a period not less than three months from the State in which meetings of the Board are ordinarily held and such an appointment shall have effect and such appointee; whilst he holds office as alternate Director, shall be entitled to notice of meetings of the Board and to attend and vote thereat accordingly; and shall ipso facto vacate office if and when the absent Director returns to the State in which meetings of the Board are ordinarily held or the absent Director vacates office as a Director." 6. The Articles of Association also provides for removal of the Director in Article 17, Article 18 lays down how the office of the Director shall become vacant ipso facto that is if he does not possess the required qualification as per section 270(1) of the Companies Act; or if he is found to be of unsound mind or insolvent or convicted by any Court or fails to pay any call in respect of shares of the company held by him or if he absents himself from three consecutive meetings of the Board. 7. Article 26 provides that subject to the provisions of the Companies Act the control of the company shall vest in the Board who shall be entitled to exercise all such powers and to do all such acts and things as the Company is authorised to exercise and do. Article 26A provides that the Company can appoint special Director or Directors. 8. Article 26A provides that the Company can appoint special Director or Directors. 8. Article 26AA on which much reliance has been placed provides as under : "Notwithstanding anything to the contrary contained in these Articles, so long as the company remains a Government Company within the meaning of Article 617 of the Act, the President of India shall be entitled to issue from time to time such directives or instructions as may be considered necessary in regard to the conduct of business and affairs of the Company. Provided that all instructions from the President of India shall be in writing addressed to the Chairman or Managing Director of the Company." 9. Article 36 provides that the Directors shall choose one of their number to be the Chairman. Article 45 provides that subject to the provisions of sections 316 and 317 of the Companies Act the Board may from time to time appoint one or more Directors to be the Chairman or Managing Director of the Company. 10. It has been brought to our notice that since Indo Burma Petroleum Company is a Government of India undertaking and it has 61% of the share holding of this company along with other financial institutions and the total holding of the Government of India in this company is to the extent of 81% and the IBP Co. Ltd. has been held to be State within the meaning of Article 12 of the Constitution by the Bombay High Court in the Case of Prabhati Das vs. General Manager, IBP Co. Ltd. (W.P. No. 4039 of 1987, decided on 14.8.1996). This was uphold in appeal by the Division Bench (Appeal No. 1277 of 1996, decided on 16.1.1987) which has been affirmed by the Hon'ble Supreme Court [SLP (c) No. 4189 of 1997]. Therefore, it is alleged that since the company is a subsidiary company of the IBP Co. Ltd., it is an instrumentality of the State. Our attention was also invited to the annual report of the company for the year 1999-2000 and 2000-2001 and reliance was placed on some of the directives issued by the Central Government to mean that for all practical purpose this company is being controlled by the Ministry of Petroleum and Natural Gas of the Government of India. Our attention was also invited to the annual report of the company for the year 1999-2000 and 2000-2001 and reliance was placed on some of the directives issued by the Central Government to mean that for all practical purpose this company is being controlled by the Ministry of Petroleum and Natural Gas of the Government of India. In one profile it has been shown to us that Balmer Lawrie is one of the public sector undertaking under the Ministry of Petroleum & Natural Gases and is a State within the meaning of Article 12 of the Constitution. Reliance was also placed on the annual report for the year 1999-2000 where it has been provided that Memorandum of Understanding for 2000-2001 with the Ministry of Petroleum and Natural Gas has targets relating to operational efficiency including gross margin, net profit to capital employed, turnover, gross export, and net foreign exchange earnings, value addition and factor days for inventory and debtors. It further says that the company has introduced Voluntary Separation Scheme (VSS). It also says that the company has taken necessary measures to implement Hindi as Official Language. It further says that the company has received advises and guidance from the Parliamentary Committee on the welfare of SC/ST and the same are being implemented by the company. It further says that the company has received a grant of a sum of Rs. 52,29,000 from Oil Industry Development Board for Research & Development Expenditure. It says that the company being a Government company the remuneration of the Directors is determined by the Presidential directives. It says that one of the Directors namely A.K. Srivastava is the nominee of the Government of India, who was the Joint Secretary in the Ministry of Petroleum & Natural Gases. It further says that the company's accounts are being audited by the Comptroller and Auditor General of India and the annual report of the company are placed on the floor of the Parliament. Learned counsel has also placed reliance on the official website of the Ministry of Petroleum & Natural Gases showing about the achievement of this company being a subsidiary company of the Government of India. Learned counsel has also placed reliance on the official website of the Ministry of Petroleum & Natural Gases showing about the achievement of this company being a subsidiary company of the Government of India. Our attention was invited to an advertisement in the said website under the heading "Strategic Alliance Partners an Invitation" wherein under the sub-heading "Stakeholders" it was provided : 'The company is a prominent member of the IBP-Balmer Lawrie Group of Companies Comprising of IBP Company Limited, Balmer Lawrie & Company Limited and Biecco Lawrie Limited. The group is under the administrative control of the Ministry of Petroleum & Natural Gas, Government of India." 11. It was also provided in the said website that the company is managed under the overall guidance of the Ministry of Petroleum & Natural Gas by a Board consisting of experienced and distinguished professionals. 12. In this background in the case of Partha Sarathi Sen Roy vs. Balmer Lawrie & Co. Ltd. [C.R. No. 1562(w) of 1981, decided on 19th December, 2000] the Hon'ble Justice Pinaki Chandra Ghosh after reviewing all the facts and the decisions cited of the Apex Court took the view that it is not a "State" within the meaning of Article 12 of the Constitution. In this case the termination of the petitioner was challenged and in that context question arose whether the company is a State within the meaning of Article 12 or not and that was answered in favour of the company. 13. In another matter Partha Sarathi Banerjee vs. Balmer Lawrie & Co. Ltd. (Matter No. 778 of 1992, decided on 27th March, 2001) appeared before the Hon'ble Justice Ashim Kumar Banerjee reference was made to the aforesaid decision of Justice Pinaki Chandra Ghosh but the learned Single Judge disagreed with the view taken by Justice Ghosh and recorded his dissent and directed that the matter may be placed before the Chief Justice to constitute a Larger Bench to answer the following question : "Is Balmer Lawrie & Co. Ltd. a 'State' within the meaning of Article 12 of the Constitution of India?" Thus the present matter came up before this Division Bench. 14. This has been fairly a vexed question in which number of decisions have been rendered by the Apex Court and High Courts in the country but each case has been decided on its peculiar facts. Ltd. a 'State' within the meaning of Article 12 of the Constitution of India?" Thus the present matter came up before this Division Bench. 14. This has been fairly a vexed question in which number of decisions have been rendered by the Apex Court and High Courts in the country but each case has been decided on its peculiar facts. Therefore, it would be useful to refer to some of the cases which have taken the line that Government company or corporation is 'State' within the meaning of Article 12 of the Constitution. Broad test which has been followed that if it is financed by the Government and it has all pervasive control and management of the Government then it shall be deemed to be a 'State' within the meaning of Article 12 of the Constitution. As against this there are other decisions of the Apex Court which suggest that simply because the Government or the President has been made a tutelary head and their full control is vested in the management, it should not be treated to be an instrumentality of the State. Therefore, in order to appreciate how much of control does the State have in the management of this company we shall dilate on the salient features of the Memorandum and Articles of Association of the company afterwards, before that we may review all the decisions of the Apex Court and the ratio laid down therein. 15. The controversy centres around Article 12 of the Constitution, which reads as under : "Article 12. In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and 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." 16. The first in the chain of decisions is the decision of the Constitution Bench of the Apex Court in the case of Electricity Board, Rajasthan vs. Mohan Lal, reported in AIR 1967 SC 1857 , wherein Justice Bhargava speaking for himself and on behalf of Subba Rao, CJ, Shelat and Mitter, JJ. The first in the chain of decisions is the decision of the Constitution Bench of the Apex Court in the case of Electricity Board, Rajasthan vs. Mohan Lal, reported in AIR 1967 SC 1857 , wherein Justice Bhargava speaking for himself and on behalf of Subba Rao, CJ, Shelat and Mitter, JJ. held that Rajasthan Electricity Board is a State within the meaning of Article 12 of the Constitution and took the view that the expression 'other authorities' under Article 12 of the Constitution will include all constitutional or statutory authorities on whom powers are conferred by law. It was observed : "It is not at all material that some of the powers conferred on the authorities may be for the purpose of carrying on commercial activities for under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the word 'State' has been given the same meaning as in Article 12 and one of the Directive Principles laid down in Article 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Article 13, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word 'State' as used in Article 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence. The Rajasthan Electricity Board was clearly an authority to which the provisions of Part III of the Constitution were applicable." 17. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence. The Rajasthan Electricity Board was clearly an authority to which the provisions of Part III of the Constitution were applicable." 17. Justice Shah while agreeing with the final order recorded his dissent with regard to the general proposition laid down by the majority of the Judges and he observed that all the institutions which do not exercise sovereign power should not be termed as 'State' within the meaning of Article 12 of the Constitution. At para 12 of the judgement he said: "In my judgment, authorities constitutional or statutory invested with powers by law not sharing the sovereign power do not fall within the expression 'State' as defined in Article 12. Those authorities which are invested with sovereign power, i.e., power to make rules or regulations and to administer or enforce them to the detriment of the citizens and others fall within the definition of ‘State’ in Article 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, 'State' within the meaning of Article 12 of the Constitution." 18. Our attention was invited to a decision of the Apex Court given in the case of Ramana Dayaram Shetty vs. International Airport Authority of India, reported in AIR 1979 SC 1628 . This was a case for inviting tenders for running restaurant and snacks bar at the airport. In that context their Lordships held that International Airport Authority is a "State" within the meaning of Article 12 of the Constitution. The International Airport Authority was constituted under the International Airport Authority Act, 1971, as such it is a statutory authority and therefore their Lordships held that while granting tenders the statutory authority has to give due regard to Articles 14 and 19(g) of the Constitution and they cannot violate the same. 19. In Sam Prakash Rekhi vs. Union of India, reported in AIR 1981 SC 212 , the question was whether Bharat Petroleum Corporation Limited is a 'State' within the meaning of Article 12 or not. 19. In Sam Prakash Rekhi vs. Union of India, reported in AIR 1981 SC 212 , the question was whether Bharat Petroleum Corporation Limited is a 'State' within the meaning of Article 12 or not. In this case following the decision given in the case of Ramana Dayaram Shetty vs. International Airport Authority of India, reported in AIR 1979 SC 1628 , it was held that Bharat Petroleum Corporation Limited is a State within the meaning of Article 12 of the Constitution. It was held : "The commonsense signification of the expression 'other authorities under the control of the Government of India' is plain and there is no reason to make exclusion on sophisticated grounds such as that the legal person must be a statutory corporation, must have power to make laws, must be created by and not under a statute and so on." 20. In Ajay Hasia vs. Khalid Mujib, reported in AIR 1981 SC 487 , the question was with regard to validity of admission to the Engineering College, Srinagar for the academic year 1979-80. The Regional Engineering College, Srinagar is one of the 15 engineering colleges in the country sponsored by the Central Government and its administration and management are carried on by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. Having regard to the Memorandum of Association and the Rules of the Society it was held that the society is an instrumentality of the State. It was also observed that the composition of the society is dominated by representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab & Rajasthan with the approval of the Central Government. The monies required for running the college are provided entirely may the Central Government. The society also complies all such directions as may be issued by the State Government and the Central Government. The control of the State and the Central Governments is indeed so deep and pervasive that no immoveable property of the society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the society. The control of the State and the Central Governments is indeed so deep and pervasive that no immoveable property of the society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the society. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of the society and of its income and property, is also largely controlled by nominees of the State and Central Governments. In this background their Lordships held that the present Engineering College is an instrumentality or agency of the State within the meaning of Article 12 of the Constitution. 21. In B.S. Minhas vs. Indian Statistical Institute, reported in AIR 1984 SC 363 , the question was whether Indian Statistical Institute is an authority under article 12 of the Constitution or not. In this case it was contended that as per the Memorandum and Articles of Association, the composition of the Institute is determined by the representatives appointed by the Central Government. The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The society has to comply with all such directions as may be issued by the Central Government. The control of the Central Government is deep and pervasive and, therefore, for all intents and purposes, it is an instrumentality of the Central Government and as such it is an authority within the meaning of Article 12 of the Constitution. 22. In the case of P.K. Ramchandra Iyer vs. Union of India, reported in AIR 1984 SC 541 , the Indian Council of Agricultural Research came into existence as a department of the Government, continued to be an attached office of the Government even though it was society registered under the Societies Registration Act and wholly financed by the Central Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up by the Government were transferred. Thus, the Indian Council of Agricultural Research being almost an inseparable adjunct of the Government of India having an outward from of being a society, it could be styled as society set up by the State and, therefore, would be an instrumentality of the State. Thus the Indian Council of Agricultural Research was found to be an instrumentality of the State. 23. In Workmen, Food Corporation of India vs. Food Corporation of India, reported in AIR 1985 SC 670 , the Food Corporation was found to be an instrumentality of the State within the meaning of Article 12 of the Constitution. 24. In Central Inland Water Transport Corporation Ltd. vs. Brojo Nath, reported in AIR 1986 SC 1571 , the question was whether the Central Inland Water Transport Corporation Ltd. can be termed as 'State' within the meaning of Article 12 or not. This was a company carrying on business of maintenance and running river services entered into a scheme of arrangement with the Central Inland Water Transport Corporation Ltd., a Government company owned by Central Government and two State Governments. It was a Government company under section 617 of the Companies Act and it was wholly owned by the Central Government and two State Governments jointly. Therefore, it is entirely financed by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it. In every respect it is thus a veil behind which the Central Government operates through its agency of a Government company. It was observed : "If there is an instrumentality or agency of the State which has assumed the garb of a Government company as defined in section 617 of the Companies Act, it does not follow that it thereby ceases to be an instrumentality agency of the State. For the purposes of Article 12 one must necessarily see through the corporate veil to ascertain whether behind that veil is the face of an instrumentality or agency of the State. The Central Inland Water Transport Corporation squarely falls within these observations and it also satisfies the various tests which have been laid down. Merely because it has so far not the monopoly of inland water transportation is not sufficient to divest it of its character of an instrumentality or agency of the State. The Central Inland Water Transport Corporation squarely falls within these observations and it also satisfies the various tests which have been laid down. Merely because it has so far not the monopoly of inland water transportation is not sufficient to divest it of its character of an instrumentality or agency of the State. It is a corporate veil, carrying out a Governmental activity and Governmental functions of vital public importance. There can thus be no doubt that the Corporation is 'the State' within the meaning of Article 12 of the Constitution. The Central Inland Water Transport Corporation Ltd. is not only a Government Company as defined in section 617 of the Companies Act, but is wholly owned by the Central Government and two State Governments jointly. It is financed entirely by these three Governments and is completely under the control of the Central Government, and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it. In every respect it is thus a veil behind which the Central Government operates through the instrumentality of a Government company. The activities carried on by the Corporation are of vital national importance. It is ridiculous to describe the Corporation as a trading company. The activities of the Corporation are of great importance to public interest, concern and welfare, and are activities of the nature carried on by a modern State and particularly a modern Welfare State." 25. In the case of Anadi Mukta Sadguru SMVSJMS Trust vs. V.R. Rudani, reported in AIR 1989 SC 1607 , the question was whether affiliated colleges are State within the meaning of Article 12 or not. In this case their Lordships extended the expression 'State' to persons or authority performing public duty to a 'State' and observed that what is relevant is the nature of duty imposed on the body and their Lordships held that Mandamus is a very wide remedy which must be easily available to reach injustice wherever is found. 26. In the case of Delhi Transport Corporation vs. DTC Mazdoor Congress, reported in AIR 1991 SC 101 , their Lordship after reviewing the provisions of Delhi Road Transport Authority Act, 1950 and the Rules came to the conclusion that it is a State within the meaning of Article 12 of the Constitution. 26. In the case of Delhi Transport Corporation vs. DTC Mazdoor Congress, reported in AIR 1991 SC 101 , their Lordship after reviewing the provisions of Delhi Road Transport Authority Act, 1950 and the Rules came to the conclusion that it is a State within the meaning of Article 12 of the Constitution. This case followed the ratio laid down in the Electricity Board, Rajasthan vs. Mohan Lal (supra) and struck down Regulation 9(b) being unfair and unjust. 27. In Hindustan Steel Works Construction Ltd. vs. State of Kerala, reported in AIR 1997 SC 2275 , the question was whether a Government company which is wholly controlled by the Central Government is excluded from the purview of the Kerala Construction Workers Welfare Funds Act, 1989 or not. In that context their Lordships after examining various provisions of this company found that since there is a deep and pervasive control of the Government over the appellant company, therefore it is an instrumentality and agency of the Central Government as such it is a State within the meaning of Article 12 of the Constitution. 28. In Air India Statutory Corporation vs. United Labour Union, reported in AIR 1997 SC 645 , Contact Labour (Regulation and Abolition) Act, 1970 came up for interpretation. The basic question was who is the appropriate Government and their Lordships after considering the matter found that Air India is a Statutory Corporation is a "State" within the meaning of Article 12 of the Constitution. Their Lordships summarised the factors which should be taken into consideration for deciding whether it is a State within the meaning of Article 12 or not. The tests laid down by their Lordships are : "(1) The constitution of the Corporation or instrumentality or agency or Corporation aggregate or corporation sole is not of sole material relevance to decide whether it is by or under the control of the appropriate Government under the Act. (2) If it is a statutory corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government. (2) If it is a statutory corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government. (3) In commercial activities carried on by a corporation established by or under the control of the appropriate Government having protection under Articles 14 and 19(2), it is an instrumentality or agency of the State. (4) The State is a service corporation. It acts through its instrumentalities, agencies or persons natural or judicial. (5) The governing power, where located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the Directive Principles. (6) The framework of service regulations made in the appropriate rules or regulations should be consistent with an subject to the same public law principles and limitations. (7) Though the instrumentality, agency or person conducts commercial activities according to business principles and are separately accountable under their appropriate bye-laws or Memorandum of Association, they become the arm of the Government. (8) The existence of deep and pervasive State control depends upon the facts and circumstances in a given situation and in the altered situation it is not the sole criterion to decide whether the agency or instrumentalities or person is by or under the control of the appropriate Government. (9) Functions of an instrumentality, agency or person are of public importance following public interest element. (10) The instrumentality, agency or person must have an element of authority or ability to effect the relations with its employees or public by virtue of power vested in it by law, Memorandum of Association or bye-laws or Articles of Association. (11) The instrumentality, agency or person renders an element of public service and is accountable to health and strength of the workers, men and women, adequate means of livelihood, security for payment of living wages, reasonable conditions of work, decent standard of life and opportunity to enjoy full leisure and social cultural activities to the workmen. (12) Every action of the public authority, agency or instrumentality or the person acting in public interest or any act that gives rise to public element should be guided by public interest in exercise of public power or action hedged with public element and is open to challenge. (12) Every action of the public authority, agency or instrumentality or the person acting in public interest or any act that gives rise to public element should be guided by public interest in exercise of public power or action hedged with public element and is open to challenge. It must meet the test of reasonableness. (13) If the exercise of power is arbitrary, unjust and unfair, the public authority, instrumentality, agency or the person acting in public interest, though in the field of private law, is not free to prescribe any unconstitutional conditions or limitations in their actions. It must be based on some relational and relevant principles. It must not be guided by irrational or irrelevant considerations and all their action should satisfy the basis law requirement of Article 14. The public law interpretation is the basic tools of interpretation in that behalf relegating common law principles to purely private law field." 29. The ratio of this case was referred to the larger bench i.e. Constitution Bench in the case of Steel Authority of India Limited vs. National Union Waterfront Workers & Ors., reported in 2001 (7) SCC 1 , wherein their Lordships have overruled the earlier decision given in the case of Air India Statutory Corporation vs. United Labour Union (supra), but the question is whether the whole of the judgment stood overruled or only with regard to the definition of 'appropriate Government' and the direction given by the Court for regularisation of the contract labour in the organisation. It is true that their Lordships have said that they have overruled the Air India's case (supra). But in so far as the question whether it is a 'State' within the meaning of Article 12 or not, their Lordships reviewed all the cases on the subject in paragraphs 29 to 38 and concluded in paragraph 39 that each case has to be decided on the facts and circumstances of that case. But in so far as the question whether it is a 'State' within the meaning of Article 12 or not, their Lordships reviewed all the cases on the subject in paragraphs 29 to 38 and concluded in paragraph 39 that each case has to be decided on the facts and circumstances of that case. It will be relevant to refer to paragraphs 38 and 39 of the judgment, which reads as under: "From the above discussion, it follows that the fact of being an instrumentality of Central /State Government or being 'State' within the meaning, of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a company/corporation or an instrumentality of the Government is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of 'appropriate Government' in the CLRA Act. Take the case of a State Government corporation/company/undertaking set up and owned by the State Government which is an instrumentality or agency of the State Government and is engaged in carrying on an industry, can it be assumed that the industry carried on under the authority of the Central Government, and in relation to any industrial dispute concerning the industry, can it be said that the appropriate Government is the Central Government? We think the answer must be in the negative. In the above example, if, as a fact, any industry is carried on by the State Government undertaking under the authority of the Central Government, then in relation to any industrial dispute concerning that industry, the appropriate Government will be the Central Government. This is so not because it is an agency or instrumentality of the Central Government but because the industry is carried on by the State Government company/corporation/undertaking under the authority of the Central Government. In our view, the same reasoning applies to a Central Government undertaking as well. Further, the definition of 'establishment' in CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case, how is 'appropriate Government' determined for the purposes of the CLRA Act or the Industrial Disputes Act? Further, the definition of 'establishment' in CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case, how is 'appropriate Government' determined for the purposes of the CLRA Act or the Industrial Disputes Act? In our view, the test is which is determinative is : whether the industry carried on by the establishment in question is under the authority of the Central Government. Obviously, there cannot be one test for one part of the definition of 'establishment' and another test for another part. Thus, it is clear that the criterion is whether an undertaking/ instrumentality of the Government is carrying on any industry under the authority of the Central Government and not whether the undertaking is an instrumentality or agency of the Government for purposes of Article 12 of the Constitution, but it of the Central Government or the State Government. 39. There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to the Central Government though they may be 'State' within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the Central Government to carryon that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government company/undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is the 'appropriate Government' in relation to any establishment, the court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the 'appropriate Government' under the CLRA Act and the ID Act provided the industry in question is carried on by a Central Government company/an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a statute or by virtue of the relationship of principal and agent or delegation of power. Such an authority may be conferred, either by a statute or by virtue of the relationship of principal and agent or delegation of power. Where the authority, to carryon any industry for or on behalf of the Central Government, is conferred on the Government company/any undertaking by the statute under which it is created, no further question arises. But if it is not so, the question that arises is whether there is any conferment of authority on the Government company/any undertaking by the Central Government to carryon the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case." 30. Their Lordships also referred to the other set of the cases that is Heavy Engineering Mazdoor Union vs. State of Bihar, [ 1969(1) SCC 765 ]; Hindustan Aeronautics Ltd. vs. Workmen, [ 1975(4) SCC 679 ]; Rashtriya Mill Mazdoor Sangh vs. Model Mills, [1984 Supp SCC 443]; and Food Corporation of India Workers' Union vs. Food Corporation of India, [ 1985(2) SCC 294 ] and explained these cases in the judgement. However, in paragraph 39, as quoted above, their Lordships took the view that each case will have to be examined on its peculiar facts that whether there is any conferment of authority on the so called Government company/undertaking by Central Government to carry on the industry in question. 31. In U.P. State Co-operative Land Development Bank Ltd. vs. Chandra Bhan Dubey, reported in 1999(1) SCC 741 , their Lordships held that U.P. State Co-operative Land Development Bank Ltd. is an instrumentality of the State within the meaning of Article 12 of the Constitution. Their Lordships held that this bank is controlled by the State and the service condition of the employees, particularly in disciplinary proceedings, are statutory in nature. Therefore, looking to the peculiar feature of the bank their Lordships held that it as a 'State' within the meaning of Article 12 of the Constitution. 32. In Distt. Manager, AP SRTC, Vijayawada vs. K. Sivaji, reported in 2001(2) SCC 135 , the Andhra Pradesh State Road Transport Corporation was found to be a 'State' within the meaning of Article 12 of the Constitution. 33. 32. In Distt. Manager, AP SRTC, Vijayawada vs. K. Sivaji, reported in 2001(2) SCC 135 , the Andhra Pradesh State Road Transport Corporation was found to be a 'State' within the meaning of Article 12 of the Constitution. 33. As against the above cited authorities of the Apex Court, our attention was invited to a number of cases to suggest that the company is not a 'State' within the meaning of Article 12 of the Constitution. Hereinafter we will deal with those case. 34. In the case of Heavy Engineering Mazdoor Union vs. State of Bihar, reported in AIR 1970 SC 82 , it was held that though shares are owned by the President of India and some officials that does not make the company an agent of the Central Government. 35. In the case of Sabhajit Tewari vs. Union of India, reported in AIR 1975 SC 1329 the Council of Scientific and Industrial Research was declared not to be an 'authority' under Article 12 of the Constitution. It was observed that it is a society registered under the Societies Registration Act and the society does not have a statutory character like Oil & Natural Gas Commission, or Life Insurance Corporation, or Industrial Finance Corporation. The fact that Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research and other activities of the Council towards the development of industries in the country are carried out in a responsible manner. This is a Constitution Bench judgement. 36. In Tekraj vs. Union of India, reported in AIR 1988 SC 469 , the Institute of Constitutional and Parliamentary Studies (ICPS) was not found to be 'State' within the meaning of Article 12 of the Constitution. It was a society registered under the Societies Registration Act. Their Lordships observed that there cannot be any strait jacket formula and it is not necessary to satisfy all the tests for reaching the conclusion either for or against holding an institution to be 'State' within the meaning of Article 12 of the Constitution. It was observed that in a given case some of the features may emerge so boldly and prominently that a second view may not be possible. It was observed that in a given case some of the features may emerge so boldly and prominently that a second view may not be possible. There may yet be other cases where the matter would be on the border line and it would be difficult to take one view or the other outright. Their Lordships after considering the aims and objects of the society came to the conclusion that the object of the society is to promote and provide for constitutional and parliamentary studies; to undertake study of courses and fundamental research relating to developments in constitutional law, conventions and practices, parliamentary procedure; organise training programmes in constitutional problems and matters of current parliamentary importance; to set up a legislative research and reference service for the benefit of all the interested members of the Union Parliament and State Legislatures; to undertake and provide for the publication of journal and research papers; to establish and maintain libraries and information services; to invite as and when feasible, scholars for lectures; to institute appropriate fellowship, offer prizes and arrange scholarships and stipends. In that context their Lordships observed that the objects of the society were not Governmental business but were certainly the aspects which were expected to equip Members of Parliament and the State Legislature with the requisite knowledge and experience of better functioning but it cannot be a 'State' within the meaning of Article 12 of the Constitution. 37. In Chandra Mohan Khanna vs. NCERT, reported in AIR 1992 SC 76 , the question for consideration was whether the National Council of Educational Research & Training is a 'State' within the meaning of Article 12 or not. Their Lordships after considering the matter held : "Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression 'State'. A wide enlargement of the meaning must be tempered by a wide limitation. It must not be lost sight of that in the modern concept of welfare State, independent institution, corporation, and agency are generally subject to the State control. The State control does not render such bodies as 'State' under Article 12, The State control, however, vast and pervasive and not determinative. The financial contribution by the State is also not conclusive. It must not be lost sight of that in the modern concept of welfare State, independent institution, corporation, and agency are generally subject to the State control. The State control does not render such bodies as 'State' under Article 12, The State control, however, vast and pervasive and not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body and rendering an important public service being the obligatory functions of the State may largely point out that the body is 'State'. If the Government operates behind a corporate veil, carrying out Governmental activities and Governmental functions of vital public importance, there may be little difficulty in defining the body as 'State' within the meaning of Article 12." 38. Their Lordships after examining the activities of the NCERT came to the conclusion that simply because the Government finances are involved in the matter and Government control is found only to monitor appropriate utilisation of the grant given by it that will not make the society a 'State' within the meaning of Article 12 of the Constitution. Their Lordships found that the society is not a 'State' within the meaning of Article 12 of the Constitution. 39. In Unni Krishnan, J.P. vs. State of A.P., reported in AIR 1993 SC 2178 , their Lordships held private institutions though they may be affiliated with the University cannot be treated to an instrumentality within the meaning of Article 12 of the Constitution. 40. Our attention was also invited to the Division Bench judgement of this Court in Anupam Ghosh vs. Union of India, reported in 1991 (II) CHN 451 . In that case Justice G.N. Ray (as he then was) speaking for the Court, after reviewing the Memorandum and Articles of Association of Andrew Yule & Co. Ltd., came to the conclusion that it is not a 'State' within the meaning of Article 12 of the Constitution. 41. Learned counsel for the appellant emphasised that the above Division Bench case of this Court is almost identical situation as that of the present case, on the basis of Memorandum and Articles of Association, it was held that though it is a Government company but it does not have all pervasive control of the State. 41. Learned counsel for the appellant emphasised that the above Division Bench case of this Court is almost identical situation as that of the present case, on the basis of Memorandum and Articles of Association, it was held that though it is a Government company but it does not have all pervasive control of the State. Therefore, it cannot be treated as 'State' within the meaning of Article 12 of the Constitution. Learned counsel produced before us the Memorandum and Articles of Association of Andrew Yule & Co. Ltd. and compared it with the Memorandum and Articles of Association of that of Balmer Lawrie & Co. and submitted that Andrew Yule & Co. Ltd. and Balmer Lawrie & Co. are identically placed and once this Court has taken one view of the matter then there is no reason for this Court to take a different view of the matter. The comparison of the provisions of the Memorandum and Articles of Association of Andrew Yule & Co. Ltd. and Balmer Lawrie may be briefly detailed as much emphasis was placed on this aspect. It is contended that the President of India holds 86.33% of the ordinary shares of Andrew Yule & Co. Ltd., the accounts are being audited by the Comptroller and Auditor General of India, the company is involved in purely trading activities, the management of the company rests in the Board of Directors and decisions are taken by the Board and not by the Government. Our attention was also invited to clause 113(B)(i) of the Memorandum and Articles of Association of Andrew Yule & Co. Ltd. which gives power to the President to issue direction for the efficient management and conduct of the business and affairs of the company. The clause further provide that the President may call returns under sub-section (ii) of Article 13(B). Article 115(A)(I) provides that the President may appoint one part-time Chairman, Chairman-cum-Managing Director and he can remove the Directors also as he has the power of removal. It further provided that the remuneration of the Directors shall be subject to such limit and conditions as may be prescribed by the President from time to time. Therefore, these are the broad features of the Memorandum and Articles of Association of Andrew Yule & Co. It further provided that the remuneration of the Directors shall be subject to such limit and conditions as may be prescribed by the President from time to time. Therefore, these are the broad features of the Memorandum and Articles of Association of Andrew Yule & Co. Ltd. and it is a Government company in terms of section 617 of the Companies Act and other provisions of the Companies Act are mutatis mutandis applicable in this case also. Therefore, it was submitted by the learned counsel that the broad features of both the companies are identical and this Court in an identical situation, after reviewing all the decisions of the Apex Court has held that such Government companies are not 'State' within the meaning of Article 12 of the Constitution. 42. In the case of Anupam Ghosh vs. Union of India (supra) their Lordships held that the company is neither indulged in monopolistic business nor does it discharge any sovereign or public function. Therefore indicia laid down by the Apex Court by various decision are not fulfilled and it is not a 'State' within the meaning of Article 12 of the Constitution. It was also observed that neither the company is a statutory corporation nor is created under any statute, it is essentially a company registered under the Companies Act as a Government company and discharging trading activities. This was an appeal against the judgement of the Learned Single Judge (Justice Umesh Chandra Banerjee, as His Lordship then was). Therefore, learned counsel emphasised that once one Division Bench of this Court has taken one view of the matter in an identical situation as that of the present one, this Court should not take a contrary view as per the law of precedent. 43. Our attention was also invited to another decision of this Court in the case of Chairman, WDSM Ltd. vs. Goutam Deb, reported in 1999(1) CHN 465. In this case the question was whether West Dinajpur Spinning Mills Ltd. is a 'State' within the meaning of Article 12 of the Constitution or not. It was observed that this company is entirely financed by the State Government and it is a State owned corporation. It does not perform any statutory or public function nor does it discharge any sovereign function. It was also observed that the company does not indulge in any monopolistic trade. It was observed that this company is entirely financed by the State Government and it is a State owned corporation. It does not perform any statutory or public function nor does it discharge any sovereign function. It was also observed that the company does not indulge in any monopolistic trade. Therefore, following the decision of Chandra Mohan Khanna vs. NCERT (supra) their Lordships held that it is not a 'State' within the meaning of Article 12 of the Constitution. Their Lordships also distinguished the earlier decision given in the case of Kalyani Spinning Mills Ltd. vs. Sudha Sashikant Shroff ( AIR 1995 Cal 48 ) being per in curium. Their Lordships also placed reliance on an earlier decision of this Court given in the case of Anupam Ghosh vs. Union of India (supra) as mentioned above. 44. Our attention was also drawn to the Division Bench decision of this Court in the case of Raj Behari Ram vs. Westinghouse Saxby Farmer Ltd., reported in 2000(1) CHN 131 . This is also a case where reference was made to a larger bench for resolving the controversy whether Westinghouse Saxby Farmer Ltd. is a 'State' within the meaning of Article 12 of the Constitution or not. The Division Bench of this Court relying on earlier two decisions of this Court held that the respondent company is a Government company. It is engaged in commercial activity. It was also observed that the company does not enjoy monopoly status in the field of trading or manufacturing activity. In this case also the State of West Bengal has 51% share in the company and the holding of the West Bengal Government in the said company shot up to 81.75% and remaining 12.15% are held by Westinghouse Saxby Farmer Ltd. The Board of Directors are nominated by the Governor of West Bengal but the management of the company is carried on according to the Memorandum and Articles of Association of the Company in terms of the Companies Act, 1956. The company also receives loan from the Government from time to time. The Division Bench of this Court referring to the earlier decisions of this Court as well as of the Apex Court came to the conclusion that the company is not a 'State' within the meaning of Article 12 of the Constitution. 45. The company also receives loan from the Government from time to time. The Division Bench of this Court referring to the earlier decisions of this Court as well as of the Apex Court came to the conclusion that the company is not a 'State' within the meaning of Article 12 of the Constitution. 45. Therefore, it was contended that in view of three successive decisions of the Division Bench of this Court, this Company may have more than 81% shares of the Government, the President can issue directions from time to time, the President can appoint Directors in the company as per Article 26AA of the Articles of Association, still the same cannot be said to be a 'State' within the meaning of Article 12 of the Constitution as it neither discharges sovereign function, nor is statutory corporation nor public function nor doing monopolistic trade exclusively nor does it have all pervasive control of the Government. 46. Having given the resume of all the cases mentioned above of the Apex Court as well as of this Court, we shall now advert to the Memorandum and Articles of Association of Balmer Lawrie & Co. and the directions issued by the President from time to time. It is admitted fact that under Article 7A the President can appoint one of the Directors in the Government Company on such terms and conditions as he thinks fit and proper and under Article 26AA he can issue such directives and instructions as may be necessary. In the present case one Sri A.K. Srivastava, an IAS Officer in the Ministry of Petroleum & Natural Gases was appointed as one of the Directors. The other Directors were from amongst the employees of this company or they were Directors of IBP Co. Ltd. which is the holding company of this company. Under Article 26 the day to day management of the affairs of the company has been vested in the Board of Directors. The provisions of section 617 are applicable to this company and the company is subject to the audit by the Comptroller and Auditor General of India and the annual report of the company are placed before the floor of the Parliament. These are the broad features of this company. In the annual report the company has shown itself to be a public sector undertaking under the Ministry of Petroleum and Natural Gases. These are the broad features of this company. In the annual report the company has shown itself to be a public sector undertaking under the Ministry of Petroleum and Natural Gases. It was also pointed out that an IPS Officer was appointed as Vigilance Officer. It is also pointed out that in order to promote "Hindi" as official language certain directions were given by the Government. It is also pointed out that the Government has also issued directions with regard to recruitment from the SC/ST/OBC and physically handicapped quota. Government has also directed pay scale of the employees. It is also pointed out that amongst the various functions which is being undertaken by the company, the manufacture of petroleum products like grease and lubricants cater to the need of the core petroleum sector. It also manufactures LPG cylinders. These factors according to the learned counsel would show that there is a deep and pervasive control of the Central Government over the company, therefore, it should be treated as a 'State' within the meaning of Article 12 of the Constitution. As against this it was pointed out that similar functions are being discharged by Andrew Yule & Co. Ltd., That is also a Government company and the President holds 86.75% shares and the Directors are to be appointed by the President of India. The company is also discharging trading activities. The Division Bench of this Court held that it is not a 'State' within the meaning of Article 12 of the Constitution. 47. After bestowing the best of our consideration to the decisions of the Apex Court as well as of this Court and keeping in view the Memorandum and Articles of Association of Balmer Lawrie & Co. we are of the opinion that this company cannot be treated, as a 'State' within the meaning of Article 12 of the Constitution. Primarily, this is a Government company engaged in trading activities and this trading activities are not of sovereign or public nature, nor is it in a monopoly business. Therefore, simply because the company is working as a trading company though it may be financed by the Government that cannot bear a mantel of 'State'. Primarily, this is a Government company engaged in trading activities and this trading activities are not of sovereign or public nature, nor is it in a monopoly business. Therefore, simply because the company is working as a trading company though it may be financed by the Government that cannot bear a mantel of 'State'. All the objects for which this company was established is as under : "(a) To acquire and take over as going concern as on and from the 1st day of January, 1924, the business of merchants and agents now carried on in the Empire of India by Jemes Nicholson Stuart and others under the style or firm of Balmer Lawrie & Co. and all or any of the assets and liabilities of the proprietors of that business, and with a view thereto to enter into the agreement referred to in Clause 4 of the Company's Articles of Association, and to carry the same into effect, with or without modification. (aa) To carryon the business of manufacture of drums, barrels, packages, tanks and containers of every description from steel and other materials and of such substances as may furnish materials for such manufacture in all its branches and the business of buyers and sellers of and dealers in the aforesaid products steel and other material substances. (b) To carryon and conduct in all its branches so acquired and to develop and extend the same. (c) To carryon all or any of the businesses of general merchants and agents in all their branches, factors, managing agents for commercial firms and companies, commission agents, insurance agents and brokers, produce brokers, ship owners, shippers, shipbrokers, carriers by land, water and air, warehousemen, wharfingers, barge owners, lightermen, forwarding agents, ice manufacturers and merchants and refrigerating store keepers, and manufacturers of paulins, tarpaulins and other waterproof material. (d) To import, export, buy, sell, pledge, make advances upon or otherwise traffic or deal in goods, wares, merchandise, manufactured and un-manufactured articles, machinery, raw materials, produce, licences, concessions, patents, policies, stocks, shares, bonds, choses in action, undertakings, privileges and other property and right of every description. (e) To undertake and transact every kind of trust or agency business which an individual person may lawfully undertake or transact. (f) To purchase, built, hire, charter or otherwise own, hold, use and dispose of steam and other ships and vessels and other appurtenances. (e) To undertake and transact every kind of trust or agency business which an individual person may lawfully undertake or transact. (f) To purchase, built, hire, charter or otherwise own, hold, use and dispose of steam and other ships and vessels and other appurtenances. (g) To carry on business as bankers, capitalists and financiers, and to undertake, carry on and execute all kinds of financial, commercial, trading and other operations, except issuing of policies of assurance on human life; to advance or lend money to such persons and on such terms as may seem expedient: to discount, buy, sell and deal in bills, notes, warrants, coupons and other negotiable or transferable securities or documents, to guarantee or become liable for the payment of money or for the performance of any obligations: and generally to transact all kinds of guarantee business. (h) To carry on the business of spinners, weavers, manufacturers, balers and pressers of jute, jute cuttings, jute rejections, hemp, cotton, silk, wool, rhea and any other fibrous materials and the cultivation thereof, and the business of buyers and sellers of and dealers in jute, jute cuttings, jute rejections, hemp, cotton, rhea, and any other fibrous materials, hides, skins, oil seeds, and any other seeds and produce and goods or merchandise made thereof, to purchase and vend the raw materials, and articles manufactured thereout, and to transact all manufacturing, curing and preparing processes and mercantile business that may be necessary or expedient. (i) To grow cultivate and produce, manipulate, manufacture, render marketable, buy, sell and deal in tea, coffee, cocoa, cinchona, rubber, sugar, indigo, flax, cotton, jute, grains, pepper, gums, tobacco, nuts, timber, seeds and every other kind of produce of the soil and products of agriculture or husbandry, and to enter into arrangements with growers for the supply of the same. (j) To purchase, take on lease, or otherwise acquire, clear, lay out, plant, cultivate, irrigate, develop, build, erect, equip, maintain and work plantations, farms, forests, lands, factories, sawmills, timber works, refineries, mills, kilns, works, buildings, plant, machinery, railways canals, wharves, roads, bridges, aqueducts and conveniences of every description. (k) To carryon the business of seeds crushers, oil extractors by crushing chemical or any other processes, oil refiners, manufacturers of and dealers in oilcake and meal, cattle food, and feeding and fattening preparations, refiners and manufacturers of sugar and all the products of sugar, and oil merchants. (k) To carryon the business of seeds crushers, oil extractors by crushing chemical or any other processes, oil refiners, manufacturers of and dealers in oilcake and meal, cattle food, and feeding and fattening preparations, refiners and manufacturers of sugar and all the products of sugar, and oil merchants. (l) To carry on the business of millers, buyers and sellers of and dealers in rice and grains of all kinds, rice merchants, grain merchants, flour merchants, and straw and fodder merchants. (m) To carry on the business of timber growers, timber merchants and sawmill proprietors, and to grow prepare for market, manipulate and deal in timber, wood, wood pulp and fuel of all kinds, and to manufacture and deal in articles of all kinds in the manufacture of which timber or wood and deal in articles of all kinds in the manufacture of which timber or wood is used, including the manufacture and sale of tea boxes and other articles. (n) To breed, rear, farm, buy, sell and deal in livestock of any kind, and to prepare and manufacture animal produce and manures of every kind, and to sell, dispose of or otherwise turn to account any such produce or manures either in their prepared or raw state. (o) To purchase, take on lease, or otherwise acquire any mines, metalliferous lands, mining rights, oilfields or quarries in any part of the world, and to search for, raise, win, get, quarry, crush, smelt, refine, and make marketable, coal, oil, petroleum, limestone, chalk, sand, gravel, brick earth, bricks, tiles, pipes, fire and other clays, cement and other minerals and substances, and to sell, dispose of and deal in the same, either in a manufactured state or otherwise, and any material or substance resulting from or to be obtained in the process of smelting, refining, crushing or manufacturing the same. (p) To carry on, in of India and elsewhere, the business of electric light and power company in all its branches, to construct, lay down, establish, fix and carry out all necessary buildings, works, machinery, mains, cables, wires, lines, accumulators, lamps and appliances and to generate, accumulate, distribute, and supply electricity, and to light streets, markets, buildings and places, both public and private. (q) To produce licences and other authorities and concessions for or in relation to the supply, of energy and to take over any licences or concessions held by any person, firm or company. (r) To carry on the business of paper and pulp makers, printers, publishers and newspaper proprietors. (s) To carry on business as engineers, iron and brass-founders, boiler makers, wire drawers, tool makers, machinists, millwrights, lead workers, pattern makers, iron and steel converters, metal workers, metallurgists, japanners, galvanisers, annealers, mechanical, structural, electrical and general engineers, consulting engineers, manufactures of machinery, plant and implements of all kinds, builders and contractors; to buy, sell, manufacture, repair, convert, alert, let on hire and deal in furnaces, machinery, implements, rolling stock, engines, bridges, and plant of every description, and to undertake and execute building and engineering contracts and works of all kinds. (t) To carry on the business of producers, manufacturers and dealers in biograph, cinemacolor and cinemaphotograph picture and films. (u) To tan, cure and otherwise prepare for the market, skins, hides and all other animal products. (v) To carry on the business of fishermen and to win, capture, cure and deal in all live or dead products of the sea. (w) To subscribe for, conditionally or unconditionally, to underwrite, issue on commission or otherwise, take, hold, deal in and convert stocks, shares and securities of all kinds; and to promote, and assist in promoting, form or organise companies, syndicates or partnerships of all kinds for the purpose of acquiring all or any of the property and liabilities of this Company, or of advancing, directly or indirectly, the objects thereof, or for any other purpose which may be thought expedient. (x) To carry on any other business, whether manufacturing or otherwise, and whether wholesale or retail, which may seem to the Company capable of being conveniently carried on in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the Company's property or rights. (y) To acquire and undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the company is authorised to carry on, or possessed of property suitable for the purpose of this Company. (y) To acquire and undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the company is authorised to carry on, or possessed of property suitable for the purpose of this Company. (z) To amalgamate or enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint adventurer, reciprocal concession, or otherwise, with any person or company carrying on or engaged in, or about to carry on or engage in any business or transaction which this Company is authorised to carryon or engage in, or any business or transaction capable of being conducted so as directly or indirectly to benefit this Company, and to sell, hold, re-issue, with or without guarantee or otherwise deal with the same. (aa) To establish and support or aid in the establishment and support of associations, institutions, funds, trusts, and conveniences calculated to benefit employee's or ex-employee's of the Company or its predecessors in business or the dependents or connections of such persons, and to grant pensions and allowances, and to make payment towards insurance, and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public or general or useful object. (bb) Generally to purchase, take on lease or in exchange, hire or otherwise acquire, any real and personal property, and any rights or privileges which the company may think necessary or convenient for the purposes of its business, and in particular any land, buildings, easements, machinery, plant and stock-in-trade. (cc) To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined. (dd) To lend money to such person and on such terms as may seem expedient, and in particular to customers and others having dealings with the company, and to guarantee overdrafts and loans made to any such persons by their bankers and generally the performance of contracts by any such persons. (ee) To borrow or resise or secure the payment of money in such manner as the Company shall think fit, and in particular by the issue of debentures or debenture stock perpetual or otherwise, charged upon all or any of the Company's property, both present and future, including its uncalled capital, and to purchase, redeem, or pay off any such securities. (ff) To remunerate any person or company for services rendered or to be rendered, in placing or assisting to place or guaranteeing the placing of any of the shares in the company's capital, or any debentures, debenture stock or other securities of the Company, or about the conduct of its business. (gg) To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable or transferable instruments. (hh) To sell or dispose of the undertaking of the Company or any part thereof for such consideration as the Company may think fit, and in particular for shares, debentures or securities of any other company having objects altogether or in part similar to those of this Company. (ii) To sell, improve, manage, develop, exchange, lease, mortgage, enfranchise, dispose of, turn to account, or otherwise deal with, all or any part of the property and rights of the Company. (jj) To procure the Company to be registered or recognised in any part of the world. (kk) To distribute any of the property of the Company in specie among the members. (ll) To do all or any of the above things in any part of the world, and as principals, agents, contractor, trustees, or otherwise, and by or through trustees, agents or otherwise, and either alone or in conjunction with others. (mm) To do all such other things as are incidental or conducive to the attainment of the above object. And it is hereby declared that the word 'Company' in this clause shall be deemed to include any partnership or other body of persons, whether incorporated or not incorporated, and whether domiciled in India or elsewhere and the intention is that the objects specified in each paragraph of this clause shall except where otherwise expressed in such paragraph, be independent main objects and be in no wise limited or restricted by reference to or inference from terms of any other paragraph or the name of the Company. (nn) To carry on the business of travel agencies, tour operators and the business of money changing activities, and to act as foreign exchange dealer and to buy, sell or otherwise deal in all kinds and to transact for itself and/or behalf of any person, body, corporate, company, corporation, society, firm or association of persons whether incorporated or not, all kinds of transactions in foreign currencies." 48. A perusal of the aforesaid objects for which this company was established would show that they are in the nature of a trading company which any trading company can undertake. There is no special activity except that produces grease and lubricants for the core petroleum sector. Otherwise, all the activities which have been enumerated of this company can be undertaken by any private company. One should not loose sight of the fact that just because Government is the major financier of this Company, that itself would not make the company a Government company. Article 298, which was amended by the 7th Amendment in 1956, clearly lays down that the executive powers of the Union and each of the State shall extend to carrying on of any trade or business and to the acquisition, holding, and disposal of property and the making of contracts for any purpose. Therefore, it is not that the Government being a sovereign cannot exercise executive powers and enter into trading activities. Government has sovereign as well as executive functions. Simply because the State has entered into trading activity that should not be confused with the sovereign functions so as to treat that activity being a sovereign one and hold a particular company through which such trading activity is being discharged as a 'State'. One should make a distinction between sovereign and executive function. The functions which are being discharged by the State in exercise of sovereign powers are different then the function like trading activity. Since the State is the major share holder in a company who is engaged in trading activities, it can always keep a check on them by managing the company through its executive arm. It can nominate one of the Directors, it can ask for the explanation from the Directors how the activities of trade are being conducted, because ultimately the money is being spent by the State. It can nominate one of the Directors, it can ask for the explanation from the Directors how the activities of trade are being conducted, because ultimately the money is being spent by the State. It can also issue direction so as to keep a necessary check on its finances as the State is the major share holder in the company. But day to day affairs of the company is given to the Board of Directors and the Board of Directors run the company. It is only that the Government keeps an eye over the company to see that the Government gets their proper return of the shares. This is different from the statutory corporation or companies which are created by the Act. In that category one can include corporations/companies like State Electricity Board, Road Transport Corporation, Life Insurance Corporation, Food Corporation of India, Indian Financial Institutions, etc. as they are created under a particular statute. The position, of the statutory institutions and that the Government companies are different. The statutory corporations are created by an Act and they are being regulated by the provisions of that Act and most of them are in a monopolistic trade like, Road Transport Corporation runs the buses on the National Highways, the power generation sector, which generates power through State undertakings like electricity board and any breach of violation of the provisions of the statute is punishable under the law. Whereas in cases where Government companies is engaged in trading activities if there is any breach of contract, by any private party they would not be subjected to any punishment. The remedy is by way of civil suit. To illustrate, if any private transport operator operates on a nationalised route then he can be punished under the Road Transport Corporation Act or the Motor Vehicles Act. Likewise, if there is a theft of the electrical energy by any person he will be hauled up under the Electricity Supply Act. Likewise there are provisions in the case of Life Insurance Corporation and Food Corporation of India. Therefore, one has to keep a distinction between the statutory corporations and the Government company/corporation engaged in the trading activities. Likewise, if there is a theft of the electrical energy by any person he will be hauled up under the Electricity Supply Act. Likewise there are provisions in the case of Life Insurance Corporation and Food Corporation of India. Therefore, one has to keep a distinction between the statutory corporations and the Government company/corporation engaged in the trading activities. As we have already reviewed the decisions of the Apex Court as well as of this Court we need not to repeat over again here but if we take a conspectus of all the cases bearing on the subject of this Court and the Apex Court we will find that there is a distinction between these two types of corporations/companies, one which partake the character of sovereign function like punishment and other who has none. Therefore, the decisive factor is incorporation and the activities undertaken by it. If the company is purely a monopolistic company like defence industry or the likes of Oil & Natural Gas Commission, Life Insurance Corporation, Food Corporation of India, etc. then it is a 'State' within the meaning of Article 12 of the Constitution. 49. In the case of Som Prakash Rekhi vs. Union of India (supra) their Lordships have summarised five tests for ascertaining the nature of the authority to be characterised as State within the meaning of Article 12 of the Constitution. Their Lordships observed that there should be a preponderant consideration for pronouncing an entity as State agency or instrumentality are (i) financial resources of the State being the chief funding source; (ii) functional character being Governmental in essence; (iii) plenary control residing in Government; (iv) prior history of the same activity having been carried on by Government and made over to the new body; and (v) some element of authority or command. These factors normally constitute that what is the nature of the authority is. If we examine this company in the light of the aforesaid factors then we will find only one factor that is major shares are with the Government. Except that no other tests laid down in the Som Prakash Rekhi vs. Union of India (supra) are fulfilled. Neither the trading activity is a Governmental in nature nor does Government have pervasive control over the day to day functions of the company. The prior history of the company was that it was a trading company. Except that no other tests laid down in the Som Prakash Rekhi vs. Union of India (supra) are fulfilled. Neither the trading activity is a Governmental in nature nor does Government have pervasive control over the day to day functions of the company. The prior history of the company was that it was a trading company. It does not carry out any monopolistic trade. It also does not have any element of authority or command. Therefore, one has to weigh the cumulative effect of these facts to consider it to be a state. One has to find out from the nature of functions being discharged by the company before declaring it to be a State. 50. The Constitution Bench in the case of Sabhajit Tewari vs. Union of India (supra) is identical to the case in our hand. In that case the question was whether the Council of Scientific and Industrial Research, a society registered under the Societies Registration Act was a State within the meaning of Article 12 of the Constitution or not. Their Lordships observed that the society does not have statutory character like ONGC, LIC or IFC, though the Prime Minister is the President and that the Government appoints nominees to the governing body and Government can terminate the membership of any member. Their Lordships observed that this cannot be treated to be a 'State' though the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research and other activities of the council towards the development of industries in the country are carried out in a responsible manner. 51. We have already enumerated all the salient features of Balmer Lawrie & Co. and Andrew Yule & Co. Ltd. and a comparison of both the companies would show that both the companies indulged in trading activities and the Memorandum and Articles of Association of both the companies by and large are the same. In both the companies major share holding is with the Central Government or by the President. In both the companies Directors can be appointed by the President. Directions are issued on both the companies by the Central Government from time to time and none of the companies discharge any monopolistic business or trade. None of the companies are statutory corporation. None of the companies are performing any statutory or public or sovereign function. In both the companies Directors can be appointed by the President. Directions are issued on both the companies by the Central Government from time to time and none of the companies discharge any monopolistic business or trade. None of the companies are statutory corporation. None of the companies are performing any statutory or public or sovereign function. Therefore, keeping in view the parity between the two companies and the view has been taken way back in 1991 by a Division Bench of this Court and the same has been followed by two other Division Benches of this Court in the cases of Chairman, WDSM Ltd. vs. Goutam Deb (supra) and Raj Behari Ram vs. Westinghouse Saxby Farmer Lid. (supra), we are of the opinion that this case also falls in line with the aforesaid decisions given by the Division Bench of this Court. Therefore, after considering over the matter, we are of the opinion that the view taken by Justice Pinaki Chandra Ghosh appears to be well founded and we hold that Balmer Lawrie & Co. is not a 'State' within the meaning of Article 12 of the Constitution. Hence, we answer the reference as aforesaid and all the matters are remitted back to the learned Single Judges to decide the same in accordance with law as we have not entered into the factual controversy involved in all these cases. Ashok Kumar Mathur, C.J.: Later on : 30.1.02 In view of difference of opinion expressed in this matter let this matter be placed before the Administrative Side of the Hon'ble Chief Justice of this Court for necessary order of assignment before a third Hon'ble Judge of this Court. Subhro Kamal Mukherjee J.: