Anil Kumar Pandey & 17 Others vs State Of U.P. & 4 Others
2015 Latest Caselaw 3772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 59
 

 
Case :- WRIT - A No. - 60557 of 2015
 

 
Petitioner :- Anil Kumar Pandey & 17 Others
 
Respondent :- State Of U.P. & 4 Others
 
Counsel for Petitioner :- Sanjai Kumar Pandey,Shrawan Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Ravindra Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioners, who are 18 in number, have prayed for issuance of a writ of mandamus directing the respondents to accept their joining as seasonal employees, and to allow them to work on their respective posts and pay their wages as per rules from the start of new Cane Crushing Season beginning from 1st October, 2015 and to continue till 15th July, 2016. All the petitioners claim to be the employees of Co-operative Cane Development Society, Basti i.e. respondent no.5.

2. It is contended that employer Co-operative Cane Development Society is a Co-operative Society, registered under the provisions of the U.P. Co-operative Societies Act, 1965. According to the petitioners, their service conditions are governed by statutory regulations, known as Uttar Pradesh Cane Co-operative Service Regulations, 1975, which have been notified in the U.P. Gazette on 18th October, 1975 (hereinafter referred to as the 'Regulations of 1975').

3. Chapter VI of the Regulations provides for categorization of entire seasonal staff into Categories 'A' and 'B', on the basis of their work and worth during the season. Persons possessing unquestionable integrity having discharged their duties efficiently during the crushing season are to be placed in Category 'A', whereas all other staff is required to be placed in Category 'B'. Regulation 26, which is relevant for the present purposes, provides for automatic re-employment in the next season of the seasonal staff placed in Category 'A'. Regulation 26 of the Regulations of 1975 is reproduced:-

"26. The staff placed in category "A" shall be automatically re-employed in the next season unless the strength of seasonal staff has been reduced in any particular year to such an extent that it may be possible to re-employ all such staff."

4. It is submitted that crushing season means the period commencing from the date when the crushing of Sugarcane in the concern Sugar Factories commences till the date when crushing ends by virtue of Clause 2(n) of the Regulations. Crushing season has also been defined under Section 2(i) of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 to mean the period beginning on the 1st October in any year and ending on the 15th July next following. Petitioners contend that the season has commenced w.e.f. 1st October, 2015, and as they are placed in Category 'A' seasonal staff of the Society, as such, they are entitled to automatic re-employment, and the respondents have arbitrarily denied such benefit of re-employment to them giving cause for filing of the present writ petition.

5. Sri Ravindra Singh, learned counsel appearing for the respondent Cane Society, has objected to the writ petition, by raising a preliminary objection that in view of the law laid down by Hon'ble Single Judge in the case of Ram Karan Vs. State of U.P. And others, being Writ Petition No.27306 of 2014, decided on 15.5.2014, as well as in view of the Division Bench judgment in Special Appeal (Defective) No.779 of 2014, decided on 12.9.2014, the writ petition against the Cane Society is not maintainable.

6. Judgment of this Court in Ram Karan (supra) has relied upon the decision of Hon'ble Supreme Court in the case of General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur vs. Satrughan Nishad reported in (2003)8 SCC 639; AIR 2003 SC 4531. Reliance has also been placed upon the judgment in the case of Gopal Prasad vs State of U.P. and 7 others, being Writ Petition No.45914 of 2013 decided on 5.9.2013, wherein also a writ petition against Cane Co-operative Development Society was held to be not maintainable. Reliance has also been made to the Division Bench judgment of this Court in the case of Jyoti Kumar Malviya Vs. Indian Farmers Fertizers Cooperative Ltd. and others; 2006 (3) ADJ 383.

7. Preliminary objection, aforesaid, is countered by the petitioners by placing reliance upon a Full Bench decision of this Court in Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operation Bank Ltd., decided on 12.9.2002.

8. Sri Ravindra Singh, learned counsel for the respondents, in reply, contends that U.P. Cane Co-operative Service Regulations, 1975 are merely in the nature of guidelines and do not have statutory force.

9. Having considered the submissions, aforesaid, it transpires that petitioners are the employees of respondent Cane Co-operative Societies, which is a duly registered Co-operative Society, under the provisions of U.P. Co-operative Societies Act, 1965 (hereinafter referred to as the 'Act'), and is a juristic person. The Act contemplates for provision relating to exercise of control over the employees of a Co-operative Society or a class of Co-operative Society. Section 122 of the Act, in this regard, is reproduced:-

"122:- Authority to control employees of co-operative societies-(1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a co-operative society and the society.

(2) The regulations framed under sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect form the date of such publication and shall supersede any regulations made under section 121."

10. Exercising the powers under sub-section 1 of Section 122 of the Act, State of Uttar Pradesh issued Government Notification No.C/95(I)-S XII-Ca-Co-op.(A) Deptt. dated January 24, 1970, constituting Cane Commissioner of the State of Uttar Pradesh as the 'Authority' to frame regulations regarding recruitments, emoluments, terms and conditions of service of the Cane Co-operative Societies, within the State of Uttar Pradesh. The Cane Commissioner i.e. the Authority constituted for the purpose, has framed the U.P. Cane Co-operative Service Regulations, 1975. Sub-section 2 of Section 122 contemplates that the regulations framed under sub-section 1 of Section 122 would be subject to approval of the State Government, and after such approval of the State, the regulations get published in the Gazette, and is to take effect from the date of such publication. The Regulations of 1975 have been published in U.P. Government Gazette on 18th October, 1975.

11. The issue, as to in what circumstances a writ petition would be maintainable against a registered Co-operative Society, came to be considered by a Full Bench of this Court in Vijay Bihari Srivastava Vs. U.P. Postal Primary Co-operative Bank Ltd. (2003) 1 UPLBEC 1. Following ratio has been laid down by the Full Bench in para 35 of the judgment:-

"35. In the light of foregoing discussions, we answer question as to whether a writ petition in the nature of certiorari will lie against a Co-operative Society or it comes within the meaning of the words 'other Authority' occurring in Article 226 of the Constitution, as follows:

The writ petition in the nature of certiorari will lie against a Co-operative Society only when such Society has ingredient of an 'Authority' within the meaning of Article 226 of the Constitution and not otherwise. The following guidelines are culled out from the various decisions of the Supreme Court, referred to above :-

1. The constitution of the Managing Body/Committee constitutes the functionaries of the Government.

2. There is an existence of deep and pervasive control of the management and policies of the Co-operative Society by the Government.

3. The function of the Co-operative Society is of public importance and closely related to the Governmental functions.

4. The financial control is by the Government or it provides financial aid controlling its affairs.

5. The violation of statutory rules applicable to the Society in regard to the service matters of its employees, and

6. Statutory violations or non-compliance of it by an authority under the Act."

12. The judgment of the Full Bench in the case of Vijay Bihari Srivastava (supra) has not been noticed either in the Division Bench judgment in Special Appeal (Defective) No. 779 of 2014, nor the same has been noticed in Ram Karan (supra). So far as the judgment of the Supreme Court in General Manager, Kisan Sahkari Chini Mills, Sultanpur Vs. Shatrughan Nishad (Supra) is concerned, it would be relevant to notice that in Kisan Sahkari Chini Mills Ltd, (Supra), the Cooperative Society concerned was engaged in the activity of running a Vacuum Pan Sugar Mill. The service conditions of such employees were governed by standing orders framed, and were not governed by any statutory service rules. The question, which cropped before Hon'ble the Supreme Court was as to whether the Society running the Sugar Mill was an 'State' within the meaning of Article-12 of the Constitution of India. It was in that context that the Hon'ble Supreme Court noticed that there was no deep and pervasive state control over the functioning of the Society, as per the test laid down by the Apex Court in Ajay Hasia and others vs Khalid Mujib Sehravardi and others, (1981) 1 SCC 722 and the writ petition against such Society was held not to be maintainable. The question as to whether a writ petition would lie against the Co-operative Society at the instance of its employee, if the service conditions are governed by statutory Service Regulations did not arise for consideration in General Manager, Kisan Sahkari Chini Mills Ltd (Supra). Although the Division Bench in Srinarayan Gupta (supra) noticed the contention of petitioners that their service conditions were governed by the regulations framed in exercise of power under Section 122 of the Act, but no discussion or finding was returned on the issue.

13. I am of the opinion that the Regulations of 1975 have been issued in exercise of powers under Section 122 of the Act, as such the service conditions of petitioners are governed by statutory regulations, and the writ petition falls within the category of cases, where a writ petition would lie against a Co-operative Society, vide para 35(5) in Vijay Bihari Srivastava (supra).

14. I am therefore of the considered opinion that since the judgment of Hon'ble Single Judge in Ram Karan (supra) as well as Hon'ble Division Bench in Special Appeal (Defective) No. 779 of 2014 in Srinarayan Gupta vs State of U.P. and 7 others; have not taken note of the law laid down in the Full Bench judgment of our Court in Vijay Bihari Srivastava (supra), and the judgment of the Apex Court in the case of General Manager, Kisan Sahkari Chini Mills Ltd (Supra), was clearly distinguishable on facts, as such the question relating to maintainability of a writ petition by an employee, against its employer Co-operative Cane Society, needs to be referred for consideration by a Larger Bench. The petitioners' submission that the judgments in Ram Karan (supra) and Srinarayan Gupta (supra) are to be treated as per incurium is not liable to be accepted, in view of principles of judicial discipline, laid down in Rana Pratap Singh Vs. State of U.P. and others reported in 1995 ACJ page 200.

15. Following questions arise for consideration by a Larger Bench:-

1. Whether a writ petition under Article 226 of the Constitution of India would be maintainable against a Co-operative Cane Development Society, at the instance of its employee, for alleged breach of the provisions of the Uttar Pradesh Cane Co-operative Service Regulations, 1975, which governs his service conditions?

2. Whether the law laid down in Ram Karan Vs. State of U.P. and others (supra) and Srinarayan Gupta vs State of U.P (Supra) lay down the correct law, in view of the law laid down by the Full Bench in Vijay Bihari Srivastava Vs. U.P. Postal Primary Co-operative Bank Ltd. (2003) 1 UPLBEC 1?

3. Whether U.P. Cane Cooperative Service Regulations, 1975 is statuary in nature having been issued under Section 122 of the Act, or is merely in the nature of administrative instructions?

16. Let the matter be placed before Hon'ble the Chief Justice for constituting a Larger Bench to answer the aforesaid questions.

Order Date :- 3.11.2015

Sumaira/Anil/Ashok Kr.

(Civil Misc. Stay Application No. 369067 of 2015)

In Re:-

Case :- WRIT - A No. - 60557 of 2015

Petitioner :- Anil Kumar Pandey & 17 Others

Respondent :- State Of U.P. & 4 Others

Counsel for Petitioner :- Sanjai Kumar Pandey,Shrawan Kumar Tripathi

Counsel for Respondent :- C.S.C.,Ravindra Singh

Hon'ble Ashwani Kumar Mishra,J.

1. Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 to 4, whereas notices on behalf of respondent No. 5 have been accepted by Shri Ravindra Singh, Advocate. All the respondents may file a counter affidavit within three weeks. Petitioner will have two weeks thereafter to file rejoinder affidavit. List thereafter.

2. By a separate order passed today in the writ petition, matter has been referred for constituting a Larger Bench to answer the questions framed therein.

3. For the reasons stated therein, as an interim measure it is provided that the petitioners, who are seasonal employees of the respondent Cane Co-operative Society and are placed in Category-A, would be entitled to automatic re-employment, at the start of the season, in terms of Regulation 26 of the Uttar Pradesh Cane Co-operative Service Regulations, 1975.

Order Date :- 3.11.2015

Sumaira/Anil