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M. Krishnamurthy Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2574 of 1966
Judge
Reported inAIR1970Kant100; AIR1970Mys100; (1970)1MysLJ462
ActsConstitution of India - Articles 14, 19, 19(1) and 226; Mysore Co-operative Societies Rules, 1960 - Rule 16 and 16(1); Mysore Co-operative Societies Act, 1959; Waliuddowala Succession Act, 1950; Bihar Sethi Lands (Restoration) Act, 1950; Orissa Municipal Act, 1950 - Sections 16(1)
AppellantM. Krishnamurthy
RespondentState of Mysore and ors.
Appellant AdvocateU. Subramaniam, Adv.
Respondent AdvocateK.S. Puttaswamy, High Court Govt. Pleader
Excerpt:
.....particular objects; 11. rule 16 which enumerates the disqualifications for membership on the committee of management of a society has in the relative clauses conceived of a well denned classification between the members of the society and the members who are employees of a society. 12. while we have no doubt that this classification is well defined, it is necessary in order to satisfy the requirements of article 14 of the constitution that the basis of the classification must have some rational relationship with the object to be achieved. the contention of the petitioner that he has got a fundamental right like other members, to stand for election has no force. the general rule as to classification in the imposition of burdens is that no one may be subject to any greater burdens..........in rule 16 (1) (c) of the rules are valid. it is undisputed that the petitioner has been a paid employee of the shimoga co-operative bank limited. shimoga and also of the kalika parameshwari co-operative society limited. the contention of the petitioner is that while other members of a co-operative society are eligible to be elected to a committee of management the rule disqualifying a paid-employee of a society from becoming a member of the committee of management of another society is ultra vires being violative of article 14 of the constitution. according to him, the relevant provision makes an unwarranted discrimination against a paid-employee of a particular society by denying him the right conferred on all the members.5. since the other clauses of rule 16 (1) were relied.....
Judgment:

Tukol, J.

1. This Writ Petition raises a question of some significance to employees working in Co-operative Societies governed by the Mysore Co-operative Societies Act, 1959 and the Mysore Cooperative Societies Rules, 1960.

2. The petitioner has been a member of the Gandhi Bazar Consumers' Co-operative Society, Shimoga, since 1963; and was one of the nominated members on the Committee of Management which elected him as Secretary at its meeting held on 14-8-1963. He was one of the nominated members under Order No. 1912/66-67 issued by the Assistant Registrar on 3-10-1966. This order was followed by a communication dated 27-10-1966: from that very Officer intimating the petitioner that his nomination had been withdrawn as he was not eligible to serve as Director on the Committee of Management of the Society under the provisions of Rule 16 (1) (c) of the Mysore Co-operative Societies Rules. 1960 (hereinafter called the Rulesl. The petitioner then filed the present writ petition on December 2, 1966 challenging the validity of the communication (document No. 3) and the provisions contained in Rule 16 (1) (c) of the Rules.

3. No counter has been filed on behalf of any of the respondents. Since the petitioner's nomination under Document No. 2 dated 3-10-1966 on the Committee of Management of the Gandhi BazarConsumers' Co-operative Society Limited (Respondent No. 3) was for the year 1966-67, the period stipulated therein has since expired and the question of striking down Document No. 3 withdrawing the nomination of the petitioner on the Committee of Management does not survive.

4. So the sole question that arises for consideration in this writ petition is whether the provisions contained in Rule 16 (1) (c) of the Rules are valid. It is undisputed that the petitioner has been a paid employee of the Shimoga Co-operative Bank Limited. Shimoga and also of the Kalika Parameshwari Co-operative Society Limited. The contention of the petitioner is that while other members of a Co-operative Society are eligible to be elected to a Committee of Management the Rule disqualifying a paid-employee of a Society from becoming a member of the Committee of Management of another Society is ultra vires being violative of Article 14 of the Constitution. According to him, the relevant provision makes an unwarranted discrimination against a paid-employee of a particular Society by denying him the right conferred on all the members.

5. Since the other clauses of Rule 16 (1) were relied upon for founding the plea of discrimination, we reproduce the provision of Sub-rule (1) of Rule 16:

'16. Disqualification for Membership of Committee.

(1) No member of a Co-operative Society shall be eligible for appointment as a member of the Committee of management of such Society, if-

(a) he is in default to the society In respect of any loan taken by him, for such period as is specified in the bye-laws of the society, or in any case for a period exceeding three months; or

(b) he has directly or indirectly, any interest in any subsisting contract made with the society or in any property sold or purchased by the Society or in any other transaction of the society, except in any investment made in, or any loan taken from the society;

(c) he is a paid employee of any society or of its financing bank, provided that this shall not apply to a paid employee of a co-operative society consisting exclusively of paid employees of co-operative societies;

(d) he is a near relation of a paid employee of the Society.

Explanation-- 'Near Relation' here means father, mother, husband, wife, son, daughter, undivided brother or unmarried sister, or such other relation as may be declared by the Government to be near relation for purposes of this clause.

(e) if he is employed as paid legal practitioner on behalf of the society or accepts employment as legal practitioner against the society;

(f) if he has been removed from office under Clauses (b) and (c) of Sub-rule (2);

Provided that this disqualification shall cease to operate after the period, if any, fixed in the order or after the expiry of 3 years from the date of the removal or earlier by an order of Government.'

6. Mr. U. Subramaniam appearing for the petitioner submitted that even though the other clauses of Sub-rule (1) imposed a disability only with reference to the Society in which the member had committed a default, had acquired interest in any subsisting contract or transaction, or had been employed as paid legal practitioner on behalf of the Society, or had accepted employment as legal practitioner against the society, Clause (c) was so general that an employee of any Society or of its financing Bank was disqualified from being appointed as a member of the Committee of Management of each and every Society even though he might be a paid employee of only one Society. It is manifest from Clauses (a), (b), (d) and (e) that each of them has reference to a well-defined class of members. While Clause (a) imposes a disqualification on a member who has been a defaulter of the society in respect of loan taken by him, Clause (b) disqualifies a member from being a member on the Committee of Management if he has directly or indirectly any interest in any subsisting contract made with the Society; Clause (d) disqualifies a person from being such member if he has any relation of his as a paid employee of that Society. Clause (e) disqualifies a legal practitioner who is employed on behalf of the Society or who accepts employment against the society from being on the Committee of Management. It was contended on behalf of the petitioner that it would have been defensible to some extent if the disqualification to be a member of the committee of Management of a Society had been restricted only to that Society in which the member was a paid employee; the ban placed by Clause (c) on an employee is not only with reference to the Society of which he is a paid employee but also with reference to other Societies of which he is not an employee at all.

7. Mr. Subramaniam submitted that the rule was violative of Article 14 of the Constitution as the disqualification imposed on employees is not based on a valid classification and the restriction imposed on the rights of an employee member was wholly unreasonable. In support of his contention, he placed reliance on two decisions of the Supreme Court in Ameerunnissa Begum v. Mahboob Begum, : [1953]4SCR404 and Ram Prasad v. State of Bihar, : [1953]4SCR1129 . He has also placed reliance on some passage from American Jurisprudence.

8. The decision in Ameerunnissa's case, : [1953]4SCR404 discusses the validity ofWaliuddowala Succession Act 1950. The Act was challenged by Mahboob Begum and Kadiran Begum and her children on the ground that it violated Article 14 of the Constitution in depriving them of the benefit of the ordinary law viz., their claim to succession to the estate of deceased Nawab Waliuddowala. The Act had been promulgated with the avowed object to terminating disputes relating to succession to the estate of late Nawab Waliuddowala. The High Court and the Supreme Court held that the claim of the two widows and their children under the general law of the land to succeed to the property of Waliuddowala was itself a valuable right and the deprivation of that right by a piece of discriminative legislation was sufficient to bring the case within the purview of Article 14 of the Constitution. The learned Advocate for the petitioner has relied upon paragraph 11 of the Judgment which reads as follows:--

'.....It is well settled that alegislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'Per se' amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.' On the strength of these propositions of law, it was contended that there was no classification as such deducible in the rule and even if there was any, it was so unreasonable or arbitrary as to be struck down by this Court.

9. In Rama Prasad's case, : [1953]4SCR1129 the Supreme Court had to consider the validity of the Bihar Sethi Lands (Restoration) Act (34 of 1950) which singled out two individuals and one solitary transaction entered into between them and another party and declared the transaction to be a nullity on the ground that it was contrary to the provisions of law although there had been no judicial pronouncement by any Court or Tribunal on that point; the legislation was struck down on the ground that the legislature had singled out two individuals out of many lessees and denied them the right which every Indian Citizen possessed to have that right adjudicated upon by a judicial tribunal in accordance with law which applied to his case. It was held that the Act came directly within the mischief of Article 14 of the Constitution and was struckdown on that ground. In so doing, their Lordships referred to the nature and the scope of the guarantee implied in the equal protection clauses of the Constitution and stated that the presumption of constitutionality was of no avail to the State as there was no classification at all on the face of the statute.

10. It was contended fay the learned Advocate for the petitioner that there was no reasonable classification implied in Rule 16 and that the preamble to the Act did not indicate that the provisions had any object to achieve. Our attention was drawn to the preamble which states that in enacting the Mysore Co-operative Societies Act, 1959, the Legislature had thought it 'expedient to consolidate and amend the laws relating to the Co-operative Societies in the State of Mysore.' Since at the time of the enactment, there were different Acts relating to the Co-operative Societies functioning in the different areas comprising the new State of Mysore, the legislature merely stated in its preamble that its object was to consolidate and amend the laws relating to the Co-operative Societies. The object of the legislation can be easily gathered from the other provisions of the Act. The primary object is to facilitate and regulate the formation of Co-operative Societies which have as their objects 'the promotion of economic interests or general welfare of its members or of the public in accordance with the co-operative principles.' The various provisions of the Act are based on these solid principles of co-operation to serve the economic interests and the general welfare of the community. We have, therefore, to see whether the impugned clause of Rule 16 is intended to serve this or any other rational object.

11. Rule 16 which enumerates the disqualifications for membership on the Committee of Management of a Society has in the relative clauses conceived of a well denned classification between the members of the Society and the members who are employees of a Society. It is only a paid-employee-member of a Society that is disqualified from being a member on the Committee of Management of any Society or of its financing Banks. The classification cannot be said to be either arbitrary or vague. Members of a Society who are free citizens and are not employed by any Society on payment are quite different from members who are paid servants of a Society. It should be noted at this stage that Clause (c) does not prohibit an employee of a Co-operative Society from seeking election as member on the Committee of Management of a Society consisting exclusively of paid employees. In other words, where a Co-operative Society is formed exclusively by paid-employees of such Societies, it is open to each and every member of such Society, though some ofthem may happen to be paid employees, to seek election to membership on the Committee of Management The disqualification operates only in respect of Societies which, are formed by other members not employed on payment under any of the Societies.

12. While we have no doubt that this classification is well defined, it is necessary in order to satisfy the requirements of Article 14 of the Constitution that the basis of the classification must have some rational relationship with the object to be achieved. In Ramakrishna Dalmia v. Justice Tendolkar, : [1959]1SCR279 the Supreme Court has summarised on a close perusal of its earlier decisions the principles enunciated while considering the question of validity or constitutionality of any particular law attacked as discriminatory and indicated five classes in one of which the impugned statute is likely to fall. For the purpose of this case, we consider the following passage in class 1 relevant and accordingly quote it below-

'A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court, In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law.....'

13. What then is the object sought to be achieved by the Rule by denying the paid employee-members of a Co-operative Society the right to seek election as members on the Committee of Management of any Co-operative Society? The contention of the petitioner that he has got a fundamental right like other members, to stand for election has no force. The right to stand for election is a statutory right and the exercise of it will depend upon the provisions of law conferring the said right. In this connection we mav refer to the decision of the Supreme Court in Sakhawant Ali v. State of Orissa, : [1955]1SCR1004 . In that case, their Lordships had to consider the validity of Section 16 (1) (ix) of the Orissa Municipal Act, 1950 which laid down that no person shall be qualified for election to a seat in the Municipality if such person is employed as paid legal practitioner on behalf of theMunicipality or as Legal Practitioner against the Municipality. This provision was attacked on the ground that it was violative of the fundamental rights guaranteed under Article 14 and Article 19(1)(g) of the Constitution. In considering the attack under Article 14, their Lordships observed-

'.....Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. That classification however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation.

The classification here is of the legal practitioners who are employed on payment on behalf of the Municipality or act against the Municipality and those legal practitioners are disqualified from standing as candidates for election. The object or purpose to be achieved is the purity of public life; which object would certainly be thwarted if there arose a situation where there was a conflict between interest and duty. The possibility of such a conflict can be easily visualised, because if a municipal councillor is employed as a paid legal practitioner on behalf of the municipality there is likelihood of his misusing his position for the purposes of obtaining municipal briefs for himself and persuading the municipality to sanction unreasonable fees.'

14. Dealing with the objection under Article 19(1)(g) of the Constitution, their Lordships stated-

'The right of the appellant to practice the profession of law guaranteed by Article 19(1)(g) cannot be said to have been violated, because in laying down the disqualification in Section 16 (1) (ix) of the Act the Legislature does not prevent him from practising his profession of law but it only lays down that if he wants to stand as a candidate for election he shall not either be employed as a paid legal practitioner on behalf of the municipality or act as a legal practitioner against the municipality. There is no fundamental right in any person to stand as a candidate for election to the Municipality. The only fundamental right which is guaranteed is that of practising any profession or carrying on any occupation, trade or business .....'.

15. From the principles laid down by the Supreme Court in this decision, it would be clear that the right to stand for election to any statutory body is not a fundamental right but is only a statutory right. The restriction imposed on a legal practitioner engaged on behalf of the municipality or against the municipalitydisqualifying him from being a candidate at the election was held to be legal as the object sought to be achieved by it was purity of municipal administration and the possibility of such legal practitioner misusing his position as councillor. Logically it can be deduced from this decision that legal practitioners employed for or against a municipality are a class as distinguished from legal practitioners who are not so employed.

16. We have already pointed out that members of a Society who are not paid-employees of a Society form a distinct class from members who are paid-employees of the society. The tests which should be applied in determining the validity of the burden imposed upon a class of people as distinct from another class have been explained in the following passage in paragraph 528 of 'American Jurisprudence 2nd Edition, Vol. 16, at page 918'.

'In the exercise of the undoubted right of classification, it may often happen that some classes are subject to regulations and some individuals are burdened with obligations which do not rest on other classes or other individuals not similarly situated, but this fact does not necessarily vitiate a statute, because it would practically defeat legislation if it were laid down as an invariable rule that a statute is void if it does not bring all within its scope or subject all to the same burdens. Thus, it has been said that it is of the essence of a classification that on one class are cast duties and burdens different from those resting on the general public and that the very idea of classification is that of a inequality, so that the mere fact of inequality in no manner determines the matter of constitutionality. The general rule as to classification in the imposition of burdens is that no one may be subject to any greater burdens and charges than are imposed on others in the same calling or condition or in like circumstances. No burden can be imposed on one class or persons, natural or artificial, and arbitrarily selected, which is not in like conditions imposed on all other classes.

17. In the present case, the burden or the disqualification imposed on paid employee-members of a Co-operative Society is not imposed on other members who are simply members of a co-operative Society. The consitutional validity of the disqualification would necessarily depend upon the object which such disability is intended to serve. The main reason which seems to have weighed with the rule making authority is to keep the paid-employees of a Society free from parties and groups which involve themselves in election affairs. The primary duty of an employee is to concern himself wholly with the administrative aspects and with theduties which are inherent in the nature of his employment. The employee of an institution has to devote his full time during the working hours to the performance of duties entrusted to him. Devotion to duty and dedicated industry ought to guide him; in that sense discipline in office is of great importance. He has no concern with the policy-making or exercise of functions solely entrusted to a Committee of Management. The interest of the institution and public policy require that the employees are kept out from the Committee of Management. An employee getting elected to a Committee of Management may often be required to keep himself away from his legitimate work as a paid servant. He may prove a disturbing element amongst his co-employees and might use his position for his personal gain and advantage. These and other conditions might have weighed with the Government in disqualifying paid-employees from seeking election to the Committee of Management,

We have therefore, no hesitation In holding that the disqualification imposed on employee-members is reasonable and has a rational connection with the object sought to be achieved viz., to maintain discipline, efficiency and integrity of the employees and keep them away from the affairs of the Committee of Management which is concerned with matters of policy like deciding upon the activities of the Society, the methods of carrying them out, the strength of staff required and their emoluments etc. If an employee is permitted to busy himself with affairs of this character, there is no doubt that he would have no time for his normal duties of office. The disability, if removed, will lead to neglect of duty and diversion of intelligence and time to matters falling outside the scope of legitimate work. We are therefore, convinced that the disability imposed on paid-employee members serves a public purpose in requiring such members to devote all their time and intelligence towards efficient discharge of their duties for which they are being paid from the funds of the Society.

18. The learned Advocate for the petitioner drew our attention to the decision of the Madras High Court in State of Madras v. Murray and Co., : AIR1965Mad301 , in which their Lordships had to consider the reasonableness of the restriction imposed on the fundamental right guaranteed by Article 19(1)(g) of the Constitution. The appeals before their Lordships were against the decisions of a single Judge who dealt with the applications of the respondent under Article 226 of the Constitution challenging the validity of a notification issued by the Commissioner of Police prohibiting the plying of hand-carts in day-time on Mount Road from Round Tana to Gemini Round about between 7-30hours to 20 hours a Main Road in a business area. Their Lordships held that the impugned notification which totally prohibited the passage of hand-carts during daytime was invalid. In coming to this conclusion their Lordships relied upon the decision of the Supreme Court in Ramjilal v. State of U. P.. : 1957CriLJ1006 in which the scope of Clause (6) of Article 19 has been dealt with. We do not see any analogy between the restriction held invalid in that case and the restriction under consideration.

19. The learned Advocate for the Petitioner further contended that as the respondent had not filed any counter affidavit, the impugned legislation should be held to be invalid as the restriction imposed on the right of a paid-employee member was prima facie unreasonable and sufficient to rebut the presumption of constitutionality of the rule. He quoted paragraphs 139 and 140 from Vol. 16 of American Jurisprudence which deal with the presumption of constitutionality and the limitations of that presumption. The relevant portion reads;

'The presumption of constitutionality of legislation is a strong one. But it is not conclusive; it is a rebuttable presumption of fact.

It has been held in some jurisdictions that when it is proposed by a statute to deny, modify, or diminish a right or immunity secured to the people by a clear and explicit constitutional provision, this presumption in favour of the constitutionality of statutes no longer applies, but a contrary presumption arises against the validity of such statute .....

the presumption of constitutionality has been held inapplicable to a state statute abridging the freedom of press assured by state and federal constitutions. .....

These principles do not come into play in this case as there is neither a denial nor a diminishment of any fundamental right. Where the constitutionality of a provision of law is assailed, absence of counter affidavit does not establish the contention of the petitioner. It is open to the Court in such cases to consider facts and circumstances of common knowledge, human experience, conduct of public affairs and legal functions of institutions in testing the reasonableness of the restriction. We have discussed the impugned restriction with reference to relevant factors relating to Co-operative Societies and their normal activities. The right to be elected to a Body of Management of a Co-operative Society is a statutory right and the statute which has created it has imposed restrictions which, in our opinion, are quite reasonable and have a legitimate and public object to serve.

20. In the result, we hold that the order (document No. 3) issued by the As-assistant Registrar of Co-operative Societies on 27-10-1966 is legal and the provisions under which the same was issued are constitutionally valid. The petitioner is not entitled to any relief. The petition is dismissed. In the circumstances of the case, we make no order as to costs.

21. Petition dismissed.


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