JUDGMENT [ENTITY], J.
1. Heard Mr. [ENTITY], learned counsel for the petitioner.
2. The writ petition is liable to be dismissed since in our view the first respondent-Automotive Research Association of India cannot be said to be authority or agency or instrumentality of State within the meaning of [SECTION] of [ACT] and therefore, not amenable to writ jurisdiction.
3. The petitioner was working as Senior Purchase Officer with the first respondent (for short "Association"). His services were terminated vide order dated 8-6-1999. The petitioner challenged his termination by filing complaint under [ACT] (for short "MRTU and [ACT]") but the said complaint came to be dismissed as petitioner was not held to be workman. Thereafter the present writ petition has been filed by the petitioner challenging his termination,
4. The Association is a society registered under the [ACT]. Its registration office is situated at Pune. Inter alia, the objectives of Association are to promote research and other scientific work connected with the design, development, manufacture and operation of motor vehicles, internal combustion engine and of products of industries and trades ancillary allied with or accessory thereto and to assist the research work of any association or institution whose objects include scientific and industrial research. The Association has been set up by the Indian vehicle and automotive ancillary manufacturers and the Government of India, Ministry of industry as cooperative industrial research body, to provide services to the industry in the fields of applied research and product development in automotive engineering. Almost all the vehicle manufacturers and major ancillary manufacturers are members of the Association. The Memorandum of Association shows that seven persons viz. [ENTITY], (for and on behalf of Premier Automobiles Ltd.), [ENTITY] (for and on behalf of Tata Engineering and Locomotive Co. Ltd.), [ENTITY] (for and on behalf of Ashok Leyland Ltd.). [ENTITY] (for and on behalf of Mahindra and Mahindra Ltd.), [ENTITY] (for and on behalf of Automobile products of India Ltd.), [ENTITY] (for and on behalf of Simpson and Company Ltd.), [ENTITY] (for and on behalf of Bajaj Tempo Ltd.) and [ENTITY] (for and on behalf of Ex -Cell-O India Ltd. desired to form the society and until the Governing Council was constituted, an interim Governing Council of these person was appointed to manage the affairs of the Association. The Association comprises of four types of members viz. (a) ordinary members, (b) affiliate members, (c) nominated members, and (d) honorary members. [SECTION] of Memorandum of Association relating to ordinary members reads thus -
"5. Ordinary Members shall at the inception of the Association be the signatories of the Memorandum of Association and thereafter shall include those as may from time to lime be admitted by the Council. Affiliate Members shall mean and include manufacturers whose products are, in the opinion of the Council, principally engineering products other than products having substantive automotive applications. The admission of all members shall be at the discretion of the Council. Nominated Members shall be persons representing the Government or local bodies making substantial contributions to the funds of the Association either in the nature of recurring or nonrecurring grants provided such nomination shall be governed by an agreement with the Association.
Honorary Members shall be persons whether entitled or not to become members under the above provisions but who are elected for membership by the Council for special services or special cause.
Provided always that an Ordinary member or an affiliate member shall be a citizen of India or a body corporate established under and subject to the laws of this country having their principal place of business in India.
Provided further that any member shall, on ceasing to fulfil all or any of the conditions of the membership forthwith cease to be a member."
5. The business of Association is managed by the Council. The authorities of Association are provided in the memorandum. The relevant articles in that regard are thus -
"23. The following shall be authorities of the association.
(i) President
(ii) Vice-President
(iii) Director
(iv) such other persons who may be declared by the Association or the Council.
24. The business of the Association shall be managed by a Council.
25. The Council shall consist of not more than 25 and not less than 10 members, unless and until otherwise determined by the Association, provided that there shall be three members to be determined by the Central Government from year to year, of which one member shall be a member (Finance) who shall be the member representing the Ministry of Finance, Government of India.
26. All members of the Council except the Director shall, save as herein otherwise provided, be ordinary members of the Association elected by the General Body of the Association. The Council may co-opt not more than 5 members to the Council who need not be members of the Association, and need not qualify for membership of the Council by subscription, donation or otherwise, inclusive of those nominated and appointed by the Government.
27. The Council shall, every year, appoint from amongst themselves one President and one Vice President. The Council may appoint any person, whether a member of the Council or not, as another Authority, as may be deemed necessary by the Council, as provided under Clause 23 herein.
29. The Director who is to be a salaried employee of the Association shall be appointed by Council and he shall be the Chief Executive of the Association. He shall be the appointing authority for all employees of the Association, except as hereinafter stated. He should enter into an agreement with the Association and his terms of service which shall be settled with prior approval of the Central Government shall be governed by this agreement. He will be an ex-officio member of the Council.
32. At the Annual General Meeting in the Year 1968 and at the Annual General Meeting of each subsequent years, one-third of the elected members of the Council shall retire and if their number is not a multiple of three, then the number nearest to one-third shall retire. The members of the Council to retire every year shall be those who have been longest in office since their last election but as between persons who become members of the Council on same day, those to retire shall (unless they otherwise agree themselves) be determined by tot. All elected members so retiring shall be deemed to be eligible for re-election."
6. [SECTION] deal with procedure of Council and particularly [SECTION], [SECTION], [SECTION] provide thus -
"41 Each member of the Council including the President or the Chairman shall have one vote and if there shall be an equality of votes on any question to be decided by the Council, the President or the Chairman shall in addition have a casting vote.
[SECTION]. Any business, except such as the Council may by general or special order direct to be placed before the meeting, may be carried out by circulation amongst all its members and any resolution so circulaled and approved by a majority of the members signing shall be as effectual and binding as if members of the Council have recorded their views on the Resolution.
[SECTION]. Where there is a difference of opinion amongst the members of the Council the opinion of the majority shall prevail. The President may, when he considers it necessary, refer any question to the Central Government and place the comments of the Central Government before the Council.
(b) In the event of" disagreement between representative of Ministry of Finance and the President of the Council on finance matters beyond the delegated powers of the Ministry/ Department of the Government of India, the matter may be referred to the Minister of Industries and Finance Minister for a decision."
7. It is the Council's obligation to carry out the objects of the Association set forth in the Memorandum of association. [SECTION], [SECTION], [SECTION], [SECTION] read thus -
"49. The Council shall have management of all the affairs and funds of the Association and shall have the authority to exercise all the powers of the Association subject to (a) limitations laid down by a resolution of the General Body and (b) limitations in respect of expenditure laid down by the Central Government, from time to time.
[SECTION]. Subject to the provisions of Rules and Regulations the Council shall administer and manage the affairs of the Association and in particular provide for the following matters :
(i) The preparation and sanction of budget estimates, the sanctioning of expenditure, making and execution of contracts, the investment of the funds of the Association and the sale or alteration of such investments and accounts and audit, subject to the following :
Any Scheme/project, costing more than the amount specified by the Government from time to time shall be referred by the Council for approval of Government of India.
(ii) Procedure for appointment of employees under the Association subject to the following :
For proposals relating to emoluments structure i.e. adopting of pay scales, allowances and revision thereof and for creation of posts the maximum of the scale of which exceeds Rs. 4,[SECTION]0/- per month, prior approval of Government of India shall be required. The powers of the council for creation of posts shall be further subject to observance of the ban orders issued by Government of India from time to time. No reference to the Government of India would be necessary in regard to the adoption of scales of pay and allowances identical to those adopted for corresponding posts as per the Central Government orders issued from time to time.
[SECTION]. The Council shall have control in regard to all matters relating to the management and organisation of the Association. In addition to the powers and authorities by these presents or otherwise expressly conferred upon them they may exercise all such powers and do all such acts and things as may be exercised or done by the Association and are not hereby or by statute expressly directed or required to be exercised or done by the Association in General Meeting.
[SECTION]. Without prejudice to the general powers conferred by the last preceding clause and the other powers conferred by these presents, it is hereby expressly declared that the Council shall have the following powers, that is to say :
(a) To make addition, variation, amendment or repeal of rules and regulations for the administration and governance of the Association and for carrying its objects into effects. Provided, always that the same shall not in any way affect, vary or alter the provisions contained in these Rules of Association.
(b) To pay all expenses incurred in carrying out the objects of the Association.
(c) To purchase, or otherwise acquire for the Association any property, rights or privileges which the Association is authorised to acquire at such price, and generally on such terms and conditions as they think fit.
(d) To secure the fulfilment of any contracts or engagements entered into by the Association or in such manner, as they think fit.
(e) To institute, defend, compound or abandon any legal proceedings by or against the Association or otherwise concerning the affairs of the Association.
(f) To refer any claims or demands by or against the Association to arbitration and observe and perform the awards.
(g) To make and give receipts, releases and other discharges for money payable to the Association and for the claims and demands of the Association.
(h) To invest and deal with any of the money of the Association, not immediately required for the purposes thereof, upon such securities for the time being authorised by laws for the investment, to trust funds and in such manner as they may think fit, and from time to time to vary or realise such investments subject nevertheless to the provisions contained in the Memorandum of Association.
(i) To enter into all such negotiations and contracts and rescind and vary all such contracts and execute and do all such acts, deeds, and things in the name and on behalf of the Association in relation to any of the matters aforesaid or otherwise for the purpose of the Association.
(j) To set up, constitute and organise local branches of the Association in such a manner and on such terms as may be considered necessary in the interest of the Association. To constitute Committees consisting of two or more persons, not necessarily members of the Association and vary the same and delegate to them such powers as may be considered necessary for the purpose.
(k) The Committee so formed may include persons who are not members of the Association. To provide for compliance with terms and conditions attached to the payment of grants-in-aid.
(l) To affix the seal of the Association to all deeds and documents requiring the same.
(m) To determine who shall be entitled to sign on the Association's behalf bills, notes, receipts, acceptances, endorsements, cheques, releases, contracts and other documents.
(n) To appoint at any time and from time to time by powers of attorney under the seal of the Association any persons to be the attorneys of the Association for such purposes, with such powers and for such period and subject to such conditions as the Council may from time to time, think fit, but so that the Council shall not be at liberty to delegate to any such attorneys any of the discretions vested in the Council by these presents. Any such appointment may (if the Council think fit) be in favour of the members or any of the member of any local branch and/or Advisory Committee established as aforesaid or in favour of any company or of the members, directors, nominees or managers of any company or firm, and any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the Council think fit, and may authorise any such delegates or attorneys aforesaid to sub-delegate all or any of the powers, for time being vested in them."
8. The functions and power of Director are provided in [SECTION]. [SECTION] and [SECTION] which are relevant for the present purposes provide thus -
"77. (a) A Director who is to be a salaried employee shall be appointed by the Council.
(b) Subject to these rules the Director, shall in all matters under his charge, have powers similar to those of a Director of a National Laboratory under the [ACT] or such powers as may be given to him from time to time by the Council of the Association.
[SECTION]. The Director shall be the Chief Executive of the Association. It shall be the function and the duty of the Director to exercise full control and supervision over all activities of the Association whether technical or non-technical. The Director may assign/transfer any departmental function and the duties, whether technical or non-technical, to any employee of the Association appointed by him, as he may deem fit and proper and necessary."
9. The funds of the Association consist of (a) Entrance fees, annual subscription and contribution from members; (b) Grants made by the government; (c) Contribution from other sources; (d) Income from investments; and (e) Receipts of the Association from other sources.
10. [SECTION] and [SECTION] provide thus -
"84. The income, and property of the Association, whensoever derived, shall be applied solely towards the promotion of the objects of the Association and no portion thereof shall be paid or transferred directly or indirectly, by way of dividend, gift, division, bonus or otherwise by way of profit, to the members of the Association.
Provided that nothing herein shall prevent the payment in good faith of reasonable and proper remuneration to any employee of the Association or to any member of the Association, in return for any services rendered to the Association, or for any material, labour, plant or power supplied for experimental purposes, nor prevent the payment of interest at a rate fixed by the Council from time to time on money lent, or payment of a reasonable and proper rent for premises demised or let by any member of the Association.
Provided further that, except the Director no member of the Council of the Association shall be appointed to any salaried office of the Association or any office of Association paid by fees and that no remuneration or other benefit shall be given by the Association to any member of such Council of the Association except by way of repayment of out-of-pocket expenses and interest at the rate aforesaid on money lent or the payment of a reasonable and proper rent for premises, demised or let to the Association or any remuneration to any member of the Council in accordance with any recommendation by or with the approval of the Central Government.
Provided also that nothing herein shall prevent any member of the Association, whether a member of the Council or not, from exercising any process, and making, using, acquiring, and lending any articles and things in the ordinary course of his business for profit and otherwise under any licence or permission in respect of any discovery, invention and patents resulting from the work of the Association. [SECTION]. If upon the winding up or dissolution of the Association there remains, after the satisfaction of all its debt and liabilities any property whatsoever, the same shall not be paid to or distributed among the members of the Association, but shall be given or transferred to some other society, institution or institutions having objects similar to the objects of the Association and to be determined by votes not less than 3/5th of the members present personally or by proxy at the time of dissolution and which shall prohibit the distribution of its or their income and property amongst its or their members to an extent at least as great as is imposed on the Association under or by virtue of Clause 86 hereof, such institution or institutions to be determined by the members of the Association subject to the approval of the Central Government at or before the time of dissolution."
11. The accounts are required to be maintained by the Association as per the provisions contained in [SECTION]. [SECTION], [SECTION] and [SECTION] read thus -
89. At the ordinary general meeting in every year the Council shall lay before the Association an Income and Expenditure Account showing the receipt and expenditure of the Association for the period since the pending account (or in the case of first account since the registration of the Association) made up to date not more than six months before such meeting; together with the Balance Sheet made up as at the same date.
[SECTION]. Every such Balance Sheet shall be accompanied by a Report of the Council upon the general state of the Association and a Report of the Chartered Accountants.
[SECTION]. A printed copy of such Income and Expenditure Account, Balance Sheet and Report shall not less than fourteen clear days' previous to such meeting be served, on every member of the Association entitled to receive notices of General Meetings in the manner in which notices are to be served and a copy shall also be sent to the Government of India."
12. The accounts of the Association need to be examined and the correctness of the income and expenditure and balance sheet is required to be ascertained by the qualified Chartered Accountant or Chartered Accountants as provided in [SECTION]. [SECTION] and 98 read thus -
93(a) Chartered Accountants shall be appointed and their remuneration shall be fixed by the General Meeting of the Association subject to confirmation by Central Government "except for the interim period when the interim Governing Council shall have the power to appoint the Chartered Accountants and fix their remuneration". The Chartered Accountant or Chartered Accountants shall give the right to demand the production of books of accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Association.
98. No addition, alteration or amendment shall be made to the Memorandum of Association or the Rules and Regulations of the Association for the time being in force, without prior consultation with the Government of India and except in accordance with the provisions of the [ACT]."
13. From the aforesaid provisions of the Memorandum of Association referred to by us, we do not find that the first respondent Association is an authority or instrumentality or agency of the State. Neither the entire share capital of the Association is held by the Government nor the Central Government has deep and pervasive control over the functioning of the Association. Though the Association does receive some financial assistance as grant from the Central Government, it is not the sole financial source. Moveover the financial assistance from the Government does not meet the entire expenditure of the Association. The Association also does not enjoy monopoly status. The functions of the Association as pointed out above cannot be said to be closely related to the Government functions. The fact that the Indian vehicle and automotive ancillary manufacturers and the Ministry of industry, Government of India set up this Association as a co-operative industrial research body would not lead us to infer that the Association is an authority or agency or instrumentality of the State. This is because the test is whether Association is an instrumentality or agency of State and not how it was created. The Council of the Association has complete and total control in regard to all matters relating to management and organisation of the Association. The Council consists of minimum 10 members and maximum 25 members out of which only 3 members are nominated by Central Government from year to year. Every autonomous body which has some nexus with the Government cannot be brought within the sweep of expression 'State'.
14. The learned counsel for the petitioner relied upon [SECTION] and [SECTION] of the [ACT] in support of his contention that the first respondent. Association is an authority or the agency or instrumentality of the State. [SECTION] and [SECTION] read thus :
"[126. Prototype of every motor vehicle to be subject to test. On and from the date of commencement of [ACT], every manufacturer of motor vehicles other than trailers and semi-trailers shall submit the prototype of the vehicle to be manufactured by him for test by the Vehicle Research and Development Establishment of the Ministry of Defence of the Government of India or Automotive Research Association of India, Pune, or the Central Machinery Testing and Training Institute, Budni (M.P.), or the Indian Institute of Petroleum, Dehradun, and such other agencies as may be specified by the Central Government for granting a certificate by that agency as to the compliance of provisions of the Act and these rules.] [SECTION]. The testing agencies referred to in [SECTION] shall in accordance with the procedures laid down by the Central Government also conduct tests on vehicles drawn from the production line of the manufacturer to verify whether these vehicles conform to the provisions of the [[SECTION].
15. What is provided under [SECTION] and [SECTION] of the aforesaid rules is that prototype of every motor vehicle shall be subject to the test which may be carried out by various agencies including the first respondent Association. We are afraid by providing that the respondent Association is recognised body to carry out the test under [SECTION] and [SECTION] and that it is approved by Government for certification of roadworthyness, fuel efficiency test shall not confer the status of authority or instrumentality or agency of the State to the Association. Mr. [ENTITY], learned counsel for the petitioner relied upon the judgments of the Apex Court in [ENTITY] vs. Khalid Mujib Sehravardi and Ors. 1981(1) LLJ 103, [PRECEDENT] and [PRECEDENT]. In [ENTITY], the Apex Court based on the judgment in International Airport Authority culled out the following tests:
"(1) 'One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.' (2) 'Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.' (3) 'It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.' (4) 'Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.' (5) 'If the functions of the corporation of public importance and closely related to governmental functions it would be a relevant factor in classifying the corporation on an instrumentality or agency of Government.' (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.' "
16. Applying the aforesaid tests, the first respondent Association cannot be held to be authority or agency or instrumentality of State.
17. In [ENTITY], the Apex Court was seized of the question whether Indian Statistical Institute is an 'authority' within the meaning of [SECTION] of [ACT] and by referring to the Memorandum of Association found that (i) Indian Statistical Institute (ISI) was dominated by the representatives appointed by the Central Government; (ii) money required for running the ISI was provided entirely by the Central Government and even if any other moneys required for running the Institute could have only been obtained with the approval of the Central Government: (iii) the accounts of the ISI were required to be submitted to the Central Government for its scrutiny and satisfaction; and (iv) ISI had to comply with all directions issued by the Central Government. The Supreme Court held, therefore, that the Central Government had deep and pervasive control over ISI. We are afraid, in the present case the Association is independent and autonomous body and it is managed and administered by its Council and Central Government cannot be said to have deep and pervasive control. The contribution of some financial aid coupled with some regulative functions would not be sufficient to hold that the Central Government has deep and pervasive control. The Government control is confined only to the proper utilisation of grant. We have already noted from the Memorandum of Association that the funds of the Association consist of entrance fees, annual subscription and contribution from members, contribution from other sources, income from investments besides the grants made by the Government. The judgment of the Apex Court in Indian Statistical Institute, therefore, has no application. In [ENTITY], the Apex Court was dealing with the question whether the Indian Council of Agricultural Research and its affiliate Indian Veterinary Research institute are authorities and instrumentalities or agencies of the State under [SECTION]. It was found by the Apex Court that Indian Council of Agricultural Research (ICAR) was a department of the Government and continued to be an attached office of the Government even though it was registered as society under the [ACT]. The ICAR was found to be wholly financed by Government and the taxing power of the State was invoked to make it financially viable and to which independent research institute set up by the Government were transferred. The Apex Court in the light of those predominant facts held that ICAR is an inseparable adjunct of the Government of India and therefore, instrumentality of the State. The said case, therefore, has no application and does not help the petitioner at all.
18. We may note here that in [PRECEDENT], the Supreme Court was considering the question whether National Council of Educational Research and Training (NCERT) was 'State' within the meaning of [SECTION] and the Apex Court held that every autonomous body which has some nexus with the Government cannot be brought within the sweep of the expression 'State'. The Apex Court in paras 3, 5 and 6 observed thus -
"3. [SECTION] 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 wise 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 State control. The State control does not render, such bodies as 'State' under [SECTION]. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The contribution of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of 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 activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as 'State' within the meaning of [SECTION] of the [ACT]. (See : (i) [PRECEDENT] (ii) [PRECEDENT] and (iii) [PRECEDENT]
5. The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the Government policies and major programmes in the field of education particularly school education. The NCERT undertakes several kinds of programmes and activities connected with the co-ordination of research extension services and training, dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to governmental functions. The affairs of the NCERT are conducted by the executive Committee comprising of Government servants and educationists. The Executive Committee would enter into arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The funds of the NCERT consist of (i) grams made by the Government, (ii) contribution from other sources and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body. 6. Almost a similar case was considered by this court in [PRECEDENT] (supra). This Court was required to determine whether the Institute of [ACT]al and parliamentary Studies (ICPS) was state under [SECTION]. The ICPS was a registered society financed mostly by the Central Government and partly by gifts and donations from Indian and Foreign agencies. The first President of the Society was the then Speaker of the Lok Sabha. Out of the five Vice Presidents three were the then Central Ministers; the other two were the then Chief Justice of India and the Attorney General. The objects of the Society were to provide for constitutional and parliamentary studies, promotion of research in constitutional law setting up of legislative research and reference service for the benefit of legislators, organisation of training programmes in matters of parliamentary interest and importance and publication of a journal. The court found that ICPS was born as a voluntary organisation. It found further that though the annual financial contribution from the State was substantial, it was entitled to receive aid from the public and in fact, received contributions from other sources. Its objects were not governmental business. As regards the argument that the government exercised pervasive control over ICPS, the court said ([CASE NUMBER]):
"In a Welfare Stale Governmental control is very pervasive 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."
19. In the present case taking into consideration the objects of the Association as reflected from Memorandum of Association, the activities undertaken by it which are not the Government or public functions, its management and administration through its Council and the other relevant circumstances which we have noted above, we have no doubt that first respondent Association by no stretch of imagination, can be brought within the sweep of [SECTION] as it is neither an authority nor instrumentality or agency of the State.
20. Since the first respondent Association is not covered under [SECTION], writ petition is not maintainable and we dismiss it accordingly.
The petitioner may be provided ordinary copy of this order duly authenticated by Court [ENTITY] on payment of usual copying charges.