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IN THE HIGH COURT OF BOMBAY
S. Sukumaran and R.G. Sindhakar, JJ.
Sudam Vanaji Shirsat ....Petitioner.
Versus
Shetkari Sahakari Sangh Ltd. and others ....Respondents.
Writ Petition No. 3739 of 1991, decided on 1-10-1991.
Advocates appeared :
Shekhar Naphade with V.K. Damble and D.C. Dixit, for petitioner.
Pramod N. Joshi, R.B. Raghuvanshi, A.G.P., for respondents.
Articles 12 and 226-Cooperative society-Whether an authority within provisions of Article 12 of Constitution- Tests-No preliminary control of Government-Control exercised by Government indirect remote and of an attenuated character-No direct flow of funds from Government-No exterior entity with necessary proximity to Article 12-Society was born as society and functional as such.
Held-Viewed from all angles and tested by all credentials, society does not answer description of Article 12 of Constitution. Consequently petition to fail at threshold itself.
Articles 12 and 226-Co-operative Society-Termination of service of Marketing Manager of 1st respondent-Society-Legality-Whether a Cooperative Society was an authority within the provisions of Article 12 of the Constitution.
Held, the Society did not answer the description of Article 12 of the Constitution. Enquiry against the petitioner led to findings adverse to the petitioner and resulted in an order dismissing him from service. No procedural infirmity nor perversity in the assessment of evidence or analysis of contentions or arbitrariness in conclusion has been made out. High Court cannot interfere under Article 226.
Whether a co-operative society is an authority within the provisions of Article 12 of the Constitution of India.
Funding is one of the important tests for deciding whether an authority answers the description under Article 12. Funding in private society is essentially and substantially raised by the share capital of the members of the society. No doubt, it is enabled to have other helpful aids from various authorities including Government. That does not, however, establish a direct flow of funds to the society, from Government or a substantial financial investment of the Government.
No doubt, the co-operative society is subjected to different controls.
The character of the control which has to be considered in this context is the plenary control which is clearly different from some control or a few controls. In one sense, no individual or any institution, in modern times, is free from control of the Statutes. In the present case, having regard to the area of its functions, plenary control vests with the Managing Committee, over activities primarily, principally and proximately, associated with the society. The control excised by the Government is indirect and remote and of an attenuated character. There has not been any anterior entity with necessary proximity to Article 12 of the Constitution which got transmitted to the present position of co-operative society. There is no case of a Government department or authority under Article 12, which has undergone a change, only in its exterior garb, in the present case. The society was born as society and functioned as such.
The society does not answer the description of Article 12 of the Constitution.
The petitioner was subjected to for a disciplinary action, The return shows that an enquiry had been held. That enquiry led to finding adverse to the petitioner and resulted in an order dismissing him from service. No procedural infirmity nor perversity in the assessment of evidence or analysis of contentions or arbitrariness in conclusions has been made out. These aspects as well, have prompted to disinciline to interfere with in this writ petition.
The fact that the approval to appointment has been given, does not in any way, preclude the employer-society from resorting to disciplinary proceedings if and when such proceedings are called for by the misconduct of the person.
2. Whether a co-operative society is an authority within the provisions of Article 12 of The Constitution of India, is the threshold question.
3. It is unnecessary to burden the judgment with decisions of various courts including those of the Apex Court, where helpful aids and guidelines have been given for resolving that controversy. Even in relation to the co-operative societies, the question has been considered by High Courts. Some decisions have taken the view that the co-operative societies are outside the pale of the 'Authority' as sketched in Article 12. They are of High Courts of the Full Bench of the Kerala High Court, and a decision of Division Bench consisting of Ranganath Misra, C.J., and Patnaik, J., in (P. Bhaskaran v. The Additional Secretary (Agril) Co-operative Department, Trivandrum)1, A.I.R. 1988 Ker 75 (FB) and in (Chakradhar Patel v. Samasingha Service Society)2, A.I.R. 1982 Orissa 38; (Tekraj v. Union of India)3, A.I.R. 1988 S.C. 469 is a decision where principles are discussed and guidance given in an exhaustive matter. A Single Judge of this Court (Guttal, J.) followed the decision of the Gauhati High Court, reported in (Nihar Sen Gupta v. Union Territory)4, 1989 Lab I.C. 1866, and took a contrary view in (Padubidri Pattabhiram Bhat v. Shamrao Vithal Co-operative Bank)5, 1989(2) L.L.J. 377
4. Guttal, J., has considered the character and status of the Shamrao Vithal Co-operative Bank Ltd. Various features, including the very constitution of the Bank, the functions discharged by it, the controls imposed on it and other matters have been considered in that decision. We are informed that the appeal from the decision is pending consideration before a Division Bench. It is sufficient to indicate that we have reservations in relation to the reasoning and conclusions reached in that case. It is unnecessary for us to express a definite view, as the functions, character, funding and control in the present case are fundamentally different. The Gauhati decision, with great respect, has not attempted to concentrate on the constitution, functions and other salient factors highlighted in the Full Bench decision of the Kerala High Court. With great respect, we feel that Guttal, J., and the Gauhati High Court have erred in their conclusions.
5. We have necessarily to consider the essentials, before coming to our own conclusion.
6. Funding is one of the important tests for deciding whether an authority answers the description under Article 12. Funding in private society is essentially and substantially raised by the share capital of the members of the society. No doubt, it is enabled to have other helpful aids from various authorities including Government. That does not, however, establish a direct flow of funds to the society, from Government or a substantial financial investment of Government.
7. No doubt, the co-operative society is subjected to different controls. Take, for example, the appointment of the petitioner himself. The appointment is subject to the approval of the Registrar. Government is similarly the authority to sanction, even the opening of a new branch for the society. These are two of the very many controls, apart from the regular hierarchy of officers, tribunals interfering in and dealing with a variety of functions discharged by the societies.
8. The character of the control which has to be considered in this context is the plenary control which is clearly different from some control or a few controls. In one sense
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