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1999 Supreme(All) 1501
IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
GAJENDRA KUMAR SHARMA - Appellant
Versus
GENERAL MANAGER, THE BAJPUR CO-OPERATIVE SUGAR FACTORY LTD. - Respondents
Civil Misc. Writ Petition 18497 Of 1997
Decided On : 09/27/1999
A.K.Mishra, RAJEEV MISHRA, Sudhanshu Dhilya
A cooperative society is a State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction.
Headnote:
The petitioner, a seasonal employee, sought a writ of mandamus to treat him as a permanent employee. The court held that a cooperative society is a State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction. The court also held that the petitioner's service was governed by the Standing Orders, which are not a statute, and therefore, the petitioner had an alternative efficacious remedy before the forum established under the Industrial Dispute Act. However, the court found that the impugned order terminating the petitioner's service was ex-facie illegal, irregular, and malafide, as it was passed without any enquiry, charge sheet, or opportunity to defend. Therefore, the court quashed the impugned order and directed the respondents to treat the petitioner as on duty from the date he reported for joining and pay him all his arrears of pay.
Fact of the Case:
The petitioner was appointed as a clerk/typist in Bajpur Cooperative Sugar Factory Ltd. on a temporary basis and was later deputed to the office of the District Magistrate. He was issued a show cause notice for absence from duty and his service was terminated on the ground of misconduct. The petitioner challenged the termination order by filing a writ petition.
Finding of the Court:
The court held that the cooperative society is a State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction. However, the court also held that the petitioner's service was governed by the Standing Orders, which are not a statute, and therefore, the petitioner had an alternative efficacious remedy before the forum established under the Industrial Dispute Act. The court found that the impugned order terminating the petitioner's service was ex-facie illegal, irregular, and malafide, as it was passed without any enquiry, charge sheet, or opportunity to defend. Therefore, the court quashed the impugned order and directed the respondents to treat the petitioner as on duty from the date he reported for joining and pay him all his arrears of pay.
Issues: 1. Whether a cooperative society is a State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction? 2. Whether the petitioner's service was governed by the Standing Orders, which are not a statute, and therefore, the petitioner had an alternative efficacious remedy before the forum established under the Industrial Dispute Act? 3. Whether the impugned order terminating the petitioner's service was ex-facie illegal, irregular, and malafide?
Ratio Decidendi: 1. A cooperative society is a State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction. 2. The petitioner's service was governed by the Standing Orders, which are not a statute, and therefore, the petitioner had an alternative efficacious remedy before the forum established under the Industrial Dispute Act. 3. The impugned order terminating the petitioner's service was ex-facie illegal, irregular, and malafide, as it was passed without any enquiry, charge sheet, or opportunity to defend.
Final Decision: The court quashed the impugned order terminating the petitioner's service and directed the respondents to treat the petitioner as on duty from the date he reported for joining and pay him all his arrears of pay.
( 1 ) THE petitioner has prayed for a mandamus commanding the respondents to treat the petitioner as permanent employee instead of seasonal employee on the date when his juniors have been confirmed. The writ petition has been directed against the Bajpur Co-operative Sugar Factory ltd. , a Co-operative Society, registered under the U. P. Co-operative Societies Act. Before Mr. Dilia learned Counsel for the petitioner could open his case, Mr. A. K. Mishra, learned Counsel for respondents has taken a preliminary objection.
( 2 ) ACCORDING to Mr. Mishra, the Co-operative Sugar Factory, is a Cooperative Society which is not a State within the meaning of Article 12 of the Constitution of India as has been held in the case of Radha Charan Sharma v. U. P. Co-operative Federation and Ors. , 1982 UPLBEC 89 (FB) : 1982 ALR 342 (FB), and therefore, the writ petition is not maintainable against respondent No. 1. He then contends that no writ lies against Kishan Sahkari Chini Mill, which has since been held in the case of Vijay Shankar Saini v. Deputy Registrar and Ors. , (1997) 1 UPLBEC 262. It was then contended that service of the petitioner having been governed by the Standing Order, which do not have any statutory force, as has been held in the case of Rajasthan State Road transport Corporation and Anr. v. Krishna Kant, AIR 1995 SC 1715, therefore, the petitioner cannot seek to invoke writ jurisdiction.
( 3 ) MR. Sudhanshu Dulia, learned Counsel for the petitioner on the other hand contends that the question is no more res-integra. In as much as in the case of Jagveer Singh v. The Chairman, co-operative Textile Mills Ltd. and Anr. , decided on 6th May, 1999 in Special Appeal No. 344 of 1999, the Division Bench of this Court [now reported in (1999) 2 UPLBEC 1251 (DB)] had held that a cooperative society is a State within the meaning of Article 12 of the Constitution of india and amenable to writ jurisdiction. Therefore, it is no more open to agitate the said point any more.
( 4 ) IN reply Mr. Mishra, learned Counsel for the respondents had contended that the Division bench had proceeded in the basis that the decision in the case of Radha Charan Sharma (FB) (supra) stood impliedly overruled by reasons of the decision in the case of U. P. State co-operative Land Development Ltd. v. Chandrabhan Dube and Ors. , JT 1998 (9) SC 81 : (1999) 1 UPLBEC 296 (SC) : (1999) 1 SCC 741. But the said decision of the Apex Court has never overruled the Full Bench decision in the case of Radha Charan Sharma (supra ). The said decision was not a decision on the general proposition on the question of maintainability of a writ petition against a Co-operative Society. The observation of the Apex Court made in the said judgment since been relied upon by the Division Bench is an obiter. The question was never before the Honble Supreme Court and the Supreme Court were not called upon to decide the said question, According to him, therefore, the judgment of the Division Bench is per incurium.
( 5 ) I have heard both the learned Counsel at length on the preliminary question.
( 6 ) IN order to appropriate the respective contention of the learned Counsel, it would be beneficial to refer to the decision in the case of Jagvder Singh (supra) at first.
( 7 ) IN the said judgment the Division Bench had expressed a view that "the expression other authorities embraces within its sweep and ambit, every public authority exercising statutory powers; every authority created by or under Statute; and even a non-statutory authority exercising public sanctions. " This was sought to be determined on the principle of instrumentality or agency of the Government that has been developed by the Apex Court in the case of Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481. While considering the same, the principle enunciated in the case of Ajai Hasia (supra), appears to have drawn support from the decision in the case of Ramana Daya Ram Shetty v. International Airport Authority of I
