The main legal point established is that a writ petition against a cooperative society may not be maintainable, and the petitioner should pursue the remedy before the appropriate authority as per the Larger Bench decision.

1. Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent in Pro.No.1122/Tho.U./2002 dated 06.08.2003; and of the 2nd respondent in Pro.No.5585/FA/2000 dated 21.08.2001, quash the said orders and issue consequential directions to the respondents to reinstate the petitioner in service with all consequential benefits such as back-pay, continuity of service, etc.

2. Heard Mr.M.Ravi, learned counsel appearing for the petitioner; Mr.S.V.Durai Solaimalai, learned Additional Government Pleader appearing for the first respondent and Mr.R.Madanagopal, learned counsel appearing for the second respondent.

3. The writ petitioner in this case was appointed as mazdoor in the second respondent Milk Producers Co-operative Union in the year 1974 and thereafter promoted as Senior Factory Assistant. While discharging his duty he was caught red-handed for removing 63 bags of = litre milk packet belonging to the Union without appropriate authorisation and consequently he was suspended. A memo has been issued initiating disciplinary proceedings. Enquiry was conducted as per procedure and a punishment of dismissal from service was imposed by the second respondent. Challenging the same the writ petition has been filed.

4. In the affidavit filed in support of the writ petition it has been stated that an appeal has been filed with a delay and since there was no interim order was passed, petitioner has filed the writ petition. Para 9 of the affidavit reads as follows:-

"9. I have submitted an Appeal dated 25.1.2002 against the above order of punishment to the first respondent with a request to condone the delay in filing the Appeal and to stay the order of punishment till the disposal of the Appeal. No order has been passed on the Appeal and no interim order has been received."

5. The appeal came to be disposed of by the first respondent on 6.8.2003. Thereafter, the petitioner filed M.P.No.43428 of 2003 to amend the prayer in the writ petition, thereby challenging the order of the first respondent appellate authority. That application was allowed. No specific application raising additional grounds challenging the order of the first respondent appellate authority has been filed.

6. At the time of final hearing, it is found that most of the grounds raised in the writ petition are relating to factual aspects of the delinquency alleged against the petitioner. The petitioner having preferred an appeal, should have withdrawn this writ petition then. Petitioner ought not to have pursued two parallel proceedings. On the contrary, when the appeal was dismissed, he has chosen only to amend the prayer in the writ petition without raising any legal plea by way of additional grounds, challenging the order of the first respondent. The grounds raised in the writ petition is only against the order of the disciplinary authority.

7. In any event, as rightly pointed out by the learned counsel for the respondents, the writ petition itself is not maintainable in view of the Larger Bench decision of this Court in K.Marappan - vs. - Deputy Registrar of Co-operative Societies, Namakkal reported in (2006)4 MLJ 641 = 2006(4) CTC 689=2006-4 L.W.495. Para 21 of the larger Bench decision of this Court reads as follows:-

"21. From the above discussion, the following propositions emerge:-

(i) If a particular co-operative society can be characterised as a State within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be an authority within the meaning and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a society in violation of the bye-laws can be corrected by way of writ petition.

(ii) Applying the tests in Ajay Hasia it is held that the respondent society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of Article 12 of the Const