Bind Prasad Pandey vs State Of U.P. And 3 Others
2015 Latest Caselaw 3226 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 59
 

 
Case :- WRIT - A No. - 57614 of 2015
 

 
Petitioner :- Bind Prasad Pandey
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vinod Kumar Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioner is an employee of Sadhan Sahkari Samiti Ltd., Mahogarhi, District Mirzapur. He was dismissed from service by a resolution of the Co-operative Society, dated 1.7.1998. It seems that a Writ Petition No.38336 of 1999 was filed by the petitioner, challenging an order of suspension passed against the petitioner on 12th May, 1998. No disclosure was made in the writ petition about the resolution already passed against the petitioner on 1.7.1998, whereby he had been dismissed from service. Since the writ petition was filed against the order of suspension dated 12.5.1998 by concealing the fact about passing of the subsequent order of removal from service, this Court in a fresh petition disposed of the writ petition by making following observations on 28.9.1999:-

"The petitioner has been suspended by order dated 12.5.98. I am not inclined to interfere with the suspension order at this stage. Learned counsel for the petitioner contended that the charge of embezzlement has been levelled against the petitioner while the petitioner was confined to bad as he met with a serious accident and he was admitted in the hospital. However, these questions can be raised by the petitioner in the disciplinary proceedings before the enquiry officer. The learned counsel for the petitioner further urged that through he has been suspended by the respondents on 12.5.98 but his subsistence allowance has not been paid to him. This writ petition is finally disposed of with a direction to the respondents to conclude the enquiry proceedings within a period of four months from the date a certified copy of this order is produced before the concerned respondents. The respondents are further directed to pay the entire subsistence allowance to the petitioner within a period of one month from the date a certified copy of this order is produced before the concerned respondents and shall go on paying subsistence allowance to the petitioner till the disciplinary proceedings are finalised by the respondents."

2. It appears that petitioner also submitted some representation before the Deputy Registrar, Co-operative Societies, Varanasi, and upon some instructions issued by him, an enquiry report was submitted by the Additional District Co-operative Officer on 29th May, 2004. Petitioner thereafter filed another Writ Petition No.51857 of 2014, which was disposed of on 3rd November, 2014 by following orders:-

"Heard learned counsel for the petitioner and learned Standing Counsel.

The petitioner has been terminated on 1.7.1998. Against the order of termination, he has approached the Deputy Registrar, Cooperative Societies under Section 128 of the U.P. Cooperative Societies Act, 1965. In the meantime, an enquiry was conducted by the Chief Development Officer and a report has been submitted before the Deputy Registrar on 29.5.2004. Submission is that the representation before the respondent no. 6 is pending consideration.

Sole prayer of the petitioner is that respondent No.6 be directed to consider the enquiry report dated 29.5.2004 which is annexure 1 to the writ petition.

Sri. Sujeet Kumar Rai, learned counsel for respondent no. 3 and learned Standing Counsel have no objection to the prayer made by the petitioner.

In view thereof, the writ petition is being disposed of with a direction to the respondent No. 6 to take a decision on the representation moved by the petitioner taking into consideration the enquiry report dated 29.5.2004 submitted by the Additional District Cooperative Officer, Enquiry Officer, District Mirzapur, expeditiously preferably, within three months from the date of production of a certified copy of this order before him."

3. In furtherance of the directions issued by this Court, the Deputy Registrar exercising his powers under Section 128 of the Act has rejected the representation of the petitioner vide his order dated 11th March, 2015. Aggrieved by this order, the petitioner has filed the present writ petition.

4. While entertaining the writ petition, following orders were passed on 12th October, 2015:-

"It appears that the petitioner is an employee of Sadhan Sahkari Samiti Ltd., which is an independent juristic person under Section 9 of the U.P. Cooperative Societies Act. Learned counsel for the petitioner prays for and is granted time till day after tomorrow to substantiate that against such a society a writ petition would be maintainable under Article 226 of the Constitution of India.

Put up on 14.10.2015."

5. Learned counsel for the petitioner, in response to the above, has placed reliance upon a Full Bench decision of this Court rendered in the case of Vijay Bihari Srivastava Vs. Uttar Pradesh Postal Primary Co-operative Bank Ltd. [2002 (5) AWC 308]. Paragraph 35 of the said Full Bench decision, which lays down the ratio, is reproduced:-

"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."

6. Learned counsel for the petitioner with reference to the Full Bench decision of this Court submits that the present writ petition would be maintainable, as an enquiry in the matter had been conducted by the Additional District Co-operative Officer on 29th May, 2004, and the Registrar has passed the order impugned, dated 11th March, 2015.

7. Having considered the submission, aforesaid, this Court find that the petitioner is principally aggrieved by an order of removal passed against him by the Sadhan Sahkari Samiti Ltd., dated 1st July, 1998. Admittedly, service conditions of the petitioner are not governed by any statutory service regulations. The society, which is the employer of the petitioner, is a registered society, and is a private juristic person. There are no materials brought on record of the present writ petition to show that the State exercises any deep and pervasive control over the management of the policies of the co-operative society or that the society is performing function of public importance, and is closely related to the governmental functions. None of the ingredients as laid down in paragraph 35 of the Full Bench judgment are attracted in the facts of the present case. In absence of it, this Court has no hesitation in holding that the employer of the petitioner i.e. Sadhan Sahkari Samiti Ltd. is not 'State' within the meaning of Article 12 of the Constitution of India, and is also not covered within the ambit of 'other authority' occurring in Article 226 of the Constitution of India. The writ petition in respect of the grievance of the petitioner against the order of removal from service is, therefore, not maintainable. Filing of two previous writ petitions or the order of Registrar would not change the scenario, inasmuch as in the earlier two writ petitions filed by the petitioner, the aspect relating to maintainability of the writ petition had not been touched. The remedy of the petitioner was in challenging the order of removal dated 1.7.1998, which had not been challenged in any of the writ petitions, nor could it have been assailed as such before this Court.

8. Hon'ble Supreme Court in the case of General Manager, Kisan Sahkari Chini Mills Ltd. Vs. Satrughan Nishad and others [(2003) 8 SCC 639], while considering the issue relating to maintainability of the writ petition against a co-operative society registered under the provisions of U.P. Co-operative Societies Act, has been pleased to observe that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. After considering the nature of society, it was held that a co-operative society running a Sugar Factory is not performing any public duty, and since the State had no deep and pervasive control over it, it was held that the authority is not a 'State' within the meaning of Article 12 of the Constitution of India, and a writ petition, under Article 226 of the Constitution of India, would not be maintainable against it.

9. In such circumstances, I am of the opinion that the present writ petition in respect of the grievance of the petitioner, against his removal from service, is not maintainable, and is consequently dismissed. However, dismissal of this petition would not prevent the petitioner from approaching such other forum, before which the grievance of the petitioner could be examined, in accordance with law.

Order Date :- 15.10.2015

Anil