Madras High Court
G.Thilagan vs The Managing Director on 8 February, 2021
W.P. No.2575 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P. No.2575 of 2021
G.Thilagan ...Petitioner
vs.
The Managing Director
Coimbatore Agriculture Producers
Co-operative Society N.K.1948
Siruvani Main Road
Telugupalayam, Coimbatore - 641 039 ...Respondent
****
Writ petition filed under Article 226 of the Constitution of India
for a writ of mandamus directing the respondent to consider petitioner
representation dated 12.12.2020 and to refix the salary from
26.7.2012 being the date of petitioner suspension till 30.12.2019
being the date of retirement with all attended benefits, increments
and emoluments for which he is entitled to as per G.O. No.137 of
2015 dated 09.11.2015 issued by the Tamil Nadu Co-operative and
Consumer Protection Department and consequently to refix the PF
amount, gratuity and leave surrender amount and pensions based on
petitioner revised salary.
****
For Petitioner : Mr.M.Narayanaswamy
Page No.1 of 6
W.P. No.2575 of 2021
ORDER
The petitioner has come forward with the present writ petition
for a direction to the respondent to consider his representation dated
12.12.2020 and to refix his salary from 26.7.2012 being the date of
his suspension till 30.12.2019 being the date of his retirement, with
all attended benefits, increments and emoluments for which he is
entitled to as per G.O. No.137 of 2015 dated 09.11.2015 issued by
the Tamil Nadu Co-operative and Consumer Protection Department
and consequently to re-fix the PF amount, gratuity and leave
surrender amount and pension based on his revised salary.
2. This court in K.Marappan vs. Deputy Registrar of Co-
operative Societies, Namakkal Circle, Namakkal and Another
reported in 2006-4-L.W.-495, clearly held that no writ will lie against
Co-operative Societies. But, at the same time, if there is any statutory
violation, then the aforesaid case will not inure to the benefit of Co-
operative Societies, which is evident from the reading of the following
lines of the very same judgment, as non-payment of salary, etc., will
amount to violation of Articles 21 and 300A of the Constitution of
India.
"13......The Court also elaborately discussed the six
factors which have been enumerated in the case of Ajay
Hasia and held that such private companies would
normally not be amenable to the writ jurisdiction under
W.P. No.2575 of 2021
Article 226 of the Constitution. But in certain
circumstances a writ may issue to such private bodies or
persons, as there may be statutory provisions which
need to be complied with by all concerned, including the
private companies. For example, there are certain
legislations like the Industrial Disputes Act, the Minimum
Wages Act, the Factories Act or for maintaining proper
environment, say the Air (Prevention and Control of
Pollution) Act, 1981 or the Water (Prevention and Control
of Pollution) Act, 1974, etc., or statutes of the like nature
which fasten certain duties and responsibilities statutorily
upon such private bodies which they are bound to
comply with. If they violate such statutory provisions a
writ may certainly be issued for compliance with those
provisions. For instance, if a private employer dispenses
with the services of its employee in violation of the
provisions contained under the Industrial Disputes Act, in
innumerable cases the High Court interfered and has
issued writ to the private bodies and the companies in
that regard. But, the difficulty in issuing a writ may arise
where there may not be any non-compliance with or
violation of any statutory provision by the private body.
In that event, the writ may not be issued at all. Other
remedies as may be available, may have to be resorted
to.
In the said case, in paragraph 21, the Hon'ble Apex Court, has
proposed the following:
(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
W.P. No.2575 of 2021
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 Constitution.
(iii) Even if a society cannot be characterised as a
‘State’ within the meaning of Article 12 of the
Constitution, even so a writ would lie against it to enforce
a statutory public duty cast upon the society. In such a
case, it is unnecessary to go into the question whether
the society is being treated as a ‘person’ or ‘an authority’
within the meaning of Article 226 of the Constitution and
what is material is the nature of the statutory duty placed
upon it and the Court will enforce such statutory public
duty. Although it is not easy to define what a public
function or public duty is, it can reasonably said that such
functions are similar to or closely related to those
performable by the State in its sovereign capacity.
(iv) A society, which is not a ‘State’ would not
normally be amenable to the writ jurisdiction under
Article 226 of the Constitution, but in certain
circumstances, a writ may issue to such private bodies or
persons as there may be statutory provisions which need
to be complied with by all concerned including societies. If
they violate such statutory provisions a writ would be
issued for compliance of those provisions.
(v) Where a Special Officer is appointed in respect
of a co-operative society which cannot be characterised
as a ‘State’ a writ would lie when the case falls under
Clauses (iii) and (iv) above.
(vi) The bye-laws made by a co-operative society
registered under the Tamil Nadu Co-operative Societies
Act, 1983 do not have the force of law. Hence, where a
society cannot be characterised as a ‘State’, the service
conditions of its employees governed by its bye-laws
W.P. No.2575 of 2021
cannot be enforced through a writ petition.
(vii) In the absence of special circumstances, the
Court will not ordinarily exercise power under Article 226
of the Constitution of India when the Act provides for an
alternative remedy.
(viii) The decision in M. Thanikkachalam v.
Madhuranthagam Agricultural Co-operative Society, 2000
(4) CTC 556 is no longer good law, in view of the decision
of the seven-Judge Bench of the Supreme Court in
Pradeep Kumar Biswas case and the other decisions
referred to here before.
3. In this case, there is no such plea of statutory violation taken
and therefore, in the light of the judgment (referred to supra), this
writ petition, being not maintainable, is dismissed, granting liberty to
the petitioner to work out his remedy before the authority concerned.
No costs.
08.02.2021
Index : Yes/No
(Asr)
To
The Managing Director
Coimbatore Agriculture Producers
Co-operative Society N.K.1948
Siruvani Main Road
Telugupalayam, Coimbatore - 641 039
W.P. No.2575 of 2021
S.VAIDYANATHAN,J.
(Asr)
W.P. No.2575 of 2021
Dated : 08.02.2021
