D.K. Seth, J.
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 Hon'ble 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 India and Ors., AIR 1979 SC 1628, viz :
'(1) One thing is clear that if the entire share capital of the Corporation is held by Government, it would go a long way towards indicating that the Corporation is an instrumentality or agency or Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with Government character.
(3) It may also be a relevant factor whether the Corporation enjoys monopoly status, which is the State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the Corporation is State agency or instrumentality.
(5) If the functions of the Corporation of public importance and closely related to governmental function, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.'
8. It is held by the Division Bench that in order to be an instrumentality or agency, it is not essential to satisfy all the test. In a given case one or a combination of one of them may suffice. The Court had examined the tests of existence of deep and pervasive State Control and only on that proposition the Division Bench had come to the conclusion that it discharges public function. While deliberating on the principal of existence of deep and pervasive State control, the Division Bench had observed that a conspectus of various provisions of the U.P. Co-operative Societies Act, 1965 would reveal existence of deep and pervasive State control over the affairs of every Co-operative Society registered under the Act.
9. The existence of deep and pervasive State Control, has been held to afford and indication that the Corporation is a State, agency or instrumentality, is the observation made in the case of Ajay Hasia (supra). The deep and pervasive State control is one of the indications. Ajai Hasia (supra) has never laid down that deep and pervasive State Control alone is a sufficient ingredient on which an authority could he held to be a State. The expression deep and pervasive State control as used, when laying down the ratio, in the case of Ajai Hasia (supra), cannot be read out of context nor can it be segregated. The deep pervasive State Control means its control in the finance or its management as well as control in the decision making process in running the affairs of the corporation. If certain restrictions or protection are provided in the management of a corporation in the form of a statute by exercising certain control to certain extent while leaving the entire decision making process, outside the scope of control, then it would be difficult to assume that the State control is deep and pervasive. There is a distinction in the matter of the State Control. One of the control may be in respect of certain matters for the protection of interest of the individual members holding shares in the society or corporation or for the benefit of the society or the corporation but such control may neither be deep nor be pervasive. On the other hand, the second kind of control would be deep, and at the same time pervasive. It is the question of depth and pervasiveness of the State control that would make a corporation an instrumentality or agency of the State within the meaning of the principle lain down in Ajay Hasia (supra).
10. The Division Bench had proceeded to examine, the State Control by referring to various sections of the Co-operative Societies Act in order to decipher the State control in the following manner :
'................ a co-operative society registered under the provisions of the U.P. Co-operative Societies Act, 1965 (in short the 'Act') is a body corporate as visualized by Section 9 of the Act and concededly it is affiliated to U.P. Co-operative Spinning Mills Federation Limited which is an Apex society within the meaning of Section 2(a-4) of the said Act. The petitioner being employed as a supervisor in the respondent society is 'an officer of a co-operative society' within it he meaning of the term as defined in Section 2(6) of the Act and that being the position he is a 'public servant' within the meaning of Section 21 of the Indian Penal Code as visualized by Section 124 of the Act. The Registrar, Cooperative Societies, Uttar Pradesh has the power to remove or expel a person from membership of a co-operative society under Section 27(2), get the committee of management reconstituted as visualized in the proviso to Section 29(3); supersede suspend the committee of management under Section 35; seize the records etc. under Section 37; get the accounts of every co-operative society audited as provided in Section 64; hold an enquiry into the Constitution, working and financial condition of a co-operative society; make an order of surcharge under Section 68 and remedy the defects under Section 69 of the Act, Registrar has also the power to frame regulations to regulate the appointments and other conditions of service including the disciplinary control of the Employees in a Co-operative Society or a class of cooperative societies by virtue of the power vested in him under Section 121 of the Act. Section 122 empowers the State Government to 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. The State Government is under statutory obligation to encourage and promote cooperative movement in the state as envisaged by Section 44 of the Act. Involvement of co-operative societies in various spheres of developmental activities which otherwise falls within the domain of the State would thus become inevitable. Therefore, if the test of deep and pervasive State control is applied to the respondent society, it would qualify itself to be characterized as an instrumentality or agency of State regard being had to public nature of its function'
11. Reasoning given above are related to certain restrictions so that the interest of the individual members of a co-operative society is protected and that it is not mismanaged. These are in fact restrictions or guidelines to keep the society within its bounds and be managed within the scope and ambit of the settled lines ensuring the protection of interest of individual shareholders. All these restrictions are made for protecting the interest of shareholders. These are not controls but are restrictions.
12. It is apparent that the State Government exercises its control in implementing the restrictions which requires examination of the resolution, the constitution of the Committee of Management and its relation, and the constitution of Institutional Service Board etc.
13. If these are taken to be a control by the State Government, in that event, the Company Law Board, Registrar of companies and other authorities constituted under the Companies and other authorities constituted under the Companies Act do also exercise such control over a company registered under the Companies Act except those within the meaning of Section 617 of the Companies Act, as well as those under Societies Registration Act on a society registered thereunder. This control may be a control in the form of restriction but this control cannot be termed to be deep and pervasive. In as much as in case a society acts within its bounds without violating any of the provisions referred to by the learned Division Bench, in that event, there is no scope for exercising any control by the State. There are certain parameters which are in fact tracks through which the society has to proceed or the law laid down on which the society has to run. Unless there is a violation the authorities cannot exercise any of its powers. Thus, there would be no scope of control over the affairs of the society. The control has been deliberated by the Division Bench is the control within which the society runs on its rails and it does not derail. In case it does then the society is put on rail. Once the society is on rail and if it does not derail or jump the rails, then there is any scope for exercise of the State Control. In order to be a deep and pervasive State control the State must have its control over the a/fairs of the society even when it runs on its rails. Otherwise, it would be superfluous control only to the extent of keeping the society on rail but not a deep and pervasive control. The control would be pervasive as soon the State would be empowered to influence the decision making process over the affairs of the society when it is running on its rails and in the management or finance or otherwise.
14. Alternatively, it was observed that even if the society is not a State but regard being had to the public nature of their functions, the Division Bench had no hesitation to hold that the co-operative society, registered under the U.P. Cooperative Societies Act, 1965, satisfy the requirements of or authority within the meaning of Article 12 of the Constitution.
15. The learned Division Bench had also observed that the word authority used in Article 226 was in a liberal since unlike the term used in Article 12. It also noticed the control with regard to audit and enquiry in respect of the affairs of the society as well as power to annul any resolution by the Committee of Management or the general body exercised by the Registrar as State Control. It had also noticed the power of the Registrar in determining the terms and conditions of employment, including disciplinary control of employees in society or a class of societies. It had further noticed, that the activities carried on, by the society are of public interest and thus it cannot be equated with an individual engaged in various activities of public interest. Thus, a society cannot claim immunity in respect of their activities vis-a-vis their employees from judicial superintendence and control of the High Court under Article 226 of the Constitution of India, therefore, in the opinion of the Division Bench, the co-operative societies are as much bound as such to follow the fundamental principles of reasonableness, fairness and transparency, which under the scheme of the Constitution are fundamental to governance of any democratic institution. Thus, a Co-operative society is amenable to writ jurisdiction in respect of an adverse order passed against its employees irrespective of whether the action has been taken in exercise of any statutory power or in exercise of any power under any contract of service.
16. Admittedly, Article 226 can be invoked even against a person. In its expression, Article 226 empowers the High Court to issue writs to any person or authority, including in appropriate Cases any Government. Thus, there is no doubt that Article 226 of the Constitution had never confined its application only to the Government. The expression 'authority' used in Article 226, even if used in the strict sense as it meat in Article 12, still then authorities outside the ambit of Article 12 could be covered by the expression 'person' used in Article 226. An individual as well as any corporate body or any authority as a boy is surely a person, which denotes a juristic person. Therefore, there is no doubt about the characteristics of the authorities on whom writs can be issued. But in its wisdom the judiciary had restricted and confined the issue of writs only to the Government or the State within the meaning of Article 12. The expression 'Authority' used in Article 226 had always been examined as to whether it is a State within the meaning of Article 12. In order to determine as to whether an authority is a State, the principle and concept of instrumentality and agency of the State has been evolved and developed. These principles had found its elimination in the decision in the case of Ramana Dayaram Shetty (supra), more clarified and extended in the decision in the cause of Ajay Hasiya (supra).
17. The restriction that has been imposed was with a view to maintain the efficacy of the remedy provided under Article 226 of the exercised by the High Courts. If it is made open to each individual without the restriction so long imposed through judicial decisions, in that even, the remedy would become an infructuous remedy. Inasmuch as in that event the High Court will be flooded with cases beyond its capacity and capability and capability. Our experience shows that by reason of widening the extent of instrumentality and agency to embrace authorities, which were originally not considered State within the meaning of Article 12 in the earlier decision, by reason of the application of the test of instrumentality and agency, inviting more applications clogging the disposal thereof to such an extent that matters are pendin3 in High Courts even for 10 years. If not more. The idea of providing speedy remedy has received almost a deathblow. Proceeding under Article 226 takes almost same time or even more than what is taken by the ordinary Courts where such cases could have been determined. If the purpose of rendering speedy remedy were frustrated then entire purpose of Article 226 would be rendered frustrated. The remedy provided under Article 226, by reason or the self imposed restrictions by the Courts, was never intended to empower the High Court to extend its power of superintendence over persons other than the Government or other authorities. The High Court is empowered to exercise power of superintendence only in respect of Courts or Tribunals subordinate to it. The power in Articles 226 and 227 vested in the High Court are two different and distinct power while that under Article 227 is the power of superintendence, the power under Article 226 is an extra-ordinary power district from the power of superintendence. Power Article 226 is meant for enforcement of the rights conferred by part III or for any other purpose. The expression 'any other purpose' is a purpose ancillary to the enforcement of the rights conferred in part-III.
18. In order to determine the characteristic of instrumentality and agency, it is necessary to find out as to whether the State control is deep and pervasive, while determining, it is to be borne in mind that in a welfare State, the State control may be very wide and pervasive and may touch various aspects of social life. Thus, Government control over various societies corporations or various others branches of the social existence, has to be viewed by taking a broad picture of the matter with discerning mind keeping the realities and human experiences within its sight in order to reach a reasonable conclusion.
19. The Apex Court in the case of Chandra Mohan Khanna v. National Council of Educational Research & Training and Ors., 1991 (4) SCC 578. hereinafter to as *NCERT' was called upon to decide as to whether NCERT is a State within the meaning of Article 12 of the Constitution. In the said decision the Apex Court had observed as follows :
'4. The NCERT is a society registered under the Societies Registration Act. Like all societies, it has a Memorandum of Association. It has Rules for internal management. The High Court has elaborately examined the Memorandum of Association and the Rules of the NCERT. The relevant part of the discussion by the High Court is as follows :
'The NCERT is governed by Memorandum of Association subscribed to by seven officers of the Government of India on June 6, 1961. Under Clause 31 of the Memorandum of Association the object of the Council as to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education particularly school education. Under Clause 3.2 the Council is empowered, for the relation of the above objectives to undertake several kinds of programmes and activities which include coordination or research. Extension services and training, dissemination of improved educational techniques and practices in schools, collaboration in educational programmes, distribution of ideas and information, preparation and publication of books, materials, periodicals and other literature and allied activities. Under Clause 5 of the income and property of the Council is to be applied towards the promotion of its objects and cannot be disposed of by way of dividends, bonus etc. But under this clause, the Council is free to apply the income and property towards its objectives in such manner as it may think fit. It is subject to the limitations placed by the Government of India in this regard only in respect of the expenditure of grants made by the Government. Under Clause 6 the Government of India could review the work and progress of the Council and take appropriate action to give effect to the reports received on enquiries. In addition, the Government could at any time issue directions to the Council on important matters of policy and programmes Rule 3 of the Rules of the Council provides for constitution of the Council which consists mainly of various Government officials but also includes the Chairman of the University Grants Commission, four Vice Chancellors and a number of nominees, four from school teachers and several others. Rule 7 enables the Government to fix the period of appointment of the members and to extent it from time to time. The Council's affairs are conducted by the Executive Committee whose constitution is outlined in Rule 23. This includes various Government servants but it also includes four educationists and three Professor and Heads of Departments who may be nominated by the President. Rule 37 provides that if there is any difference of opinion the view of the majority will prevail subject to a veto which could be exercised by the Government of India within a month. It also enables the President to refer any question for the decision of the Government. Rule 40 enables the Executive Committee to frame and amend Regulations not inconsistent with the rules. Rule 42 empowers the Executive Committee to enter into arrangements with Government, public or private organisations or individuals in furtherance of its objects and implementation of its programmes. Rule 57 provides that the funds of the Council shall consist of (i) grants made by Government (ii) contribution from other sources, (iii) income from the assets of the Council; and (iv) receipts of the Council from other sources.'5. The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the governmental policies and major programmes in the field of education particularly school education. The NCERT undertakes several kinds of programmes and activities connected with the coordination of research extension services and training, dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to governmental functions. The affairs of the NCERT are conducted by the Executive Committee comprising Government servants and educationists. The Executive Committee would enter into arrangements with Government, public or private organisations of individuals in furtherance of the objective for implementation of programmes. The funds of the NCERT consist of (i) grants made by the Government, (ii) contribution from other sources and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body.
6. Almost a similar case was considered by this Court in Tek Raj Vasamdi @ K. L. Basandhi v. Union of India, (1988) 1 SCC 236. This Court was required to determine whether the Institute of Constitutional and Parliamentary Studies (IPCS) was State under Article 12. The ICPS was a registered society financed mostly by the Central Government arid partly by gifts and donations from Indian and foreign agencies, the first President of the society was the then Speaker of the Lok Sabha. Out of the five Vice Presidents, three were the then Central Ministers, the other two were the then Chief Justice of India and the Attorney General. The objects of the society were to provide for constitutional and parliamentary studies promotion of research in constitutional law, setting up of legislative research and reference service for the benefit of legislators, organisation of training programmes in matters of parliamentary interest and importance and publication of a journal. The Court found that ICPS was born as a voluntary organisation. It found further that though the annual financial contribution from the State was substantial, it was entitled to receive aid from the public and in fact, received contributions from other sources. Its objects were not governmental business. As regards the argument that the Government exercised pervasive control over the ICPS, the Court said (SCC p. 257, Para 20).
'In a Welfare State.............governmental control is very pervasive and in fact touches all aspects of social existence....... A broad picture of the matter has to be taken and a discerning and mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion.'7. In the light of all these factors it was held that ICPS was not 'State'.
8. In the present case, the High Court has relied upon the Constitution bench decision of this Court in Sabhajit Tewari v. Union of India, (1975) 1 SCC 485. There it was held that the Council of Scientific and Industrial Research (C.S.I.R.), which was sponsored and controlled by the Central Government and registered under the Societies Registration Act was not 'State' within the meaning of Article 12. But this decision has been distinguished and watered down in the subsequent decisions particularly in Ajay Hasia and Ramachandra Iyer case.
9. Counsel for the appellant strongly relied upper the decision in P. K. Ramchcmdra Iyer case where this Court held that Indian Council for Agricultural Research (ICAR) was 'State' under Article 12. But it may be noted that ICAR was originally an attached office of the Government of India and its position was not altered when it was registered as a society. That case, therefore, is clearly distinguishable.
10. In our opinion, the case on hand, having regarding to the indications to .which we have called attention earlier, does not satisfy the requirements of 'State' under Article 12 of the Constitution. We, therefore, agree with the conclusion of the High Court and dismiss the appeal. In the circumstances of the case, we make no order as to costs.'
20. An examination of the control exercised by the Government or State in respect of a co-operative society does not even extend to the extent of the control exercised in respect of NCERT or ICPS or CSIR as were dealt with in the case of Chandra Mohan Khanna (supra), Tele Rak Vasandi (supra), Sabhajit Tiwari, (supra) respectively. The case of P. K. Ram Chandra Iyer (supra) in respect of ICAR is distinguishable since a co-operative society does not have the same characteristic. Inasmuch as ICAR was originally attached to the Office of the Government, which was subsequently registered as a society without altering its position, which is not a case in respect of co-operative society.
21. In case of co-operative society, the Government does not contribute finance. It is an individual share holding which finances it apart from the fund developed by it through its own business. The Government does not exercise any control with regard to the affairs of the society if it functions within the scope and ambit of the provisions provided in the Co-operative Societies Act and the Rules framed thereunder as well as Regulations framed thereunder or the Bye-laws of the Society itself. State has no control over the decision-making processor the process to adopt policies in the management of its affairs. A co-operative society may be a State while discharging statutory functions conferred on it even in relation to its employees if the services of such employees are governed by statutory Rules. The relations between a Co-operative Society and its employees are relations with regard to its contractual right unless the service condition is governed by statutory Rules. A contractual right in relation to service may confer a legal right but not a fundamental right through an attempt may be made describe the legal right arising out of contract of employment as a fundamental right by attempting to bring it within the scope of Article 21, namely, right to life which includes right to livelihood. But then it would be stretching the concept too far. it would be stretching the idea to a limit in-comprehensively. Then it would embrace all kinds of contractual relation relating to employment between every person or authority whether it is a State within the meaning of Article 12 or not, whether such contract of employment is governed by the statute or not and thereby rendering the exercise of jurisdiction under Article 226 an impossible task for the High Court when it would be flooded with cases every kind.
22. While framing Regulations regulating the conditions of service of the employees of Co-operative Societies, Legislature itself in its wisdom did not extend the application of these Regulations to all kind of Co-operative Societies. It had excluded certain class of society mainly primary societies, which are innumerable. Such legislation has been legislated with a legislative intent and purpose. The legislation intended a restriction, in not opening all contractual relations of service with a Co-operative Society to be equated at par with those regulated by Regulations framed under the Act for the purpose of exercising jurisdiction under Article 226. The instinct to survive is instinct inherent in every individual as well as institution. The purpose of survival is to maintain essentiality or utility of its existence for the purpose for which it survives. The 'judicial institutions' purpose and object is to dispense justice. If it were over-burdened then it would not be possible to perform its functions for the purpose and object for which it survives. If it embraces such a wide horizon in that even its survival would be at peril and it would be physically impossible to manage to decide cases with this flood of cases that would be invited by reason of the expanded horizon. That was the reason why the judicial decisions had restricted and confined the exercise of jurisdiction under Article 226 of the Government or the State within the meaning of Article 12 and to persons or authorities other than those within the meaning of Article 12 only when it was endowed with statutory functions or public duties relating to Government functions. The observation made in the decision in the case of Dwarika Nath v. Income Tax Officer, AIR 1966 SC 81, with regard to the power of the High Court under Article 226 appears to be obliterated. Inasmuch as in the said case the writ was sought for against the Income Tax officer who is definitely a part of the Government, namely, the authority squarely covered within the meaning of definition given in Article 12. As such the Court was never called upon to decide the issue. However, the said ratio was not applied in the case, which was before the Supreme Court while deciding the said case.
23. In the decision in the case of Anadi Mukta SSMV SSJMS Trust and Ors. v. V. R. Dudani, 1989 (2) SCC 691, the Apex Court had held that Article 226 can be invoked against any other person or a body performing public duty. The form of the body is not very much relevant. It is the nature of the duty imposed on the body is relevant. The duty must be duty in the light of the positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists the obligation cannot be denied. Such observation was made in the light of the facts involved in the said case, which related to a matter of grave importance. The entire observation was oriented by the importance of the question involved before the Apex Court owing to the nature or' public importance. The decision in the case of Praga Tools Corporation v. C.A. Inamul, 1969 (1) SCC 585, emphasized on the functions or duties imposed by a public official or an official body or even an official of society even to Companies and Corporations in relation to duties placed on them by statutes authorizing their connections for the propose of fulfilling public responsibilities. The relation between the society and its employees outside the Regulation are not duties imposed by statutes. Neither the function in relation to the contract of service between a society and its employees is a public responsibility. Neither it discharges any public function in relation between the society and its employees.
24. In the decision in the case of Sri Ram Saran v. State of U.P. and Ors., (1998) 3 UPLBEC 1867, the learned Single Judge had held that the Co-operative Society may be a private body but it certainly caters to the need of the public and arbitratiness in action by bodies performing public function is a facet of Article 14 of the Constitution, Violation of Article 14 by public bodies will give rise to a cause of action under Article 226 of the Constitution. A reading of the said decision shows that the learned Judge had proceeded on the assumption that Cooperative Society is a public body on the ground that it discharges public function since it carters to the need of the public. But how a Co-operative Society becomes a public body because it caters to the need of the public is a question, which is not free from doubt. A Co-operative Society is formed by its individual members. It is another form of business organization involving ordinary public through its own management. It carries on business. The ultimate goal of a Co-operative Society is profit oriented. Unless there is a State involvement, a Co-operative Society ipso facto does not discharge any governmental function. If carrying business by a Cooperative Society, involving general public helping themselves, is assumed to be a characteristic that caters to the need of the public then each Company, each Society registered under the Societies Registration Act, each shop and establishment, industries etc. also to cater to the need of the public. Even an individual business organization or shop owner caters to the need of the public. Individual transport operator also caters to the need of the public factory, an Industry also cater to the need of the public because it produces goods meant for consumption either by the public directly or by an industry or business producing consumer items for the public while enlarging the scope of employment that again cater to the need of the public. The Apex Court in various decisions did not characterize the public function in such a manner nor it had held that anybody which meets the need of the public or caters to the need of the public discharges public function and thereby becomes a public body. The reasoning of the said decision appears to be a little fallacious.
25. The decision in the case of U.P. State Co-operative Land Development Bank Ltd. v. Chandrabhan Dube and Ors., 1999 (1) SCC 741 : (1999) 1 UPLBEC 296 (SC) : JT 1998(9) SC 81, did not lay down that every kind of Cooperative Society would be amenable to writ jurisdiction. In the said decision, the UP. State Co-operative Land Development Bank Ltd. was constituted under the U.P. Co-operative Land Development Act, 1964 and registered under the U.P. Cooperative Societies Act, 1965. The services of the employees of the State Co- operative Land Development Bank were governed by the U.P. Co-operative Societies Employees (Service) Regulation, 1975 under which U.P. Co-operative Institutional Service Board was constituted. While considering the case of the bank, the Apex Court had adverted to the question as to how far a body can be considered to be a public body. Since the bank in that case was a statutory body constituted under the 1964 Act and the relation of its employees were governed by the 1975 Regulation having statutory force, the Apex Court were not called upon to decide as to whether a Co-operative Society which do not have distinguished status of a Statutory body created/constituted under a Statute and employees whereof were not covered by Statutory Regulations is a State or discharges public functions. There is a distinction between a body being constituted under the Statute and a body registered under a Statute Registration of a body under Statute does not make such body a statutory body whereas a body constituted under a statute is a statutory body. A body is statutory that owes its existence to the statute. The registration thereof either under the Societies Act or the Co-operative Societies Rules or the Companies Act would not add to it. The registration of a body under a Statute does not make a body, a statutory one. Thus, the observation under therein with regard to the extent of application of writs even against a private body would be an order. It cannot be extended to a Co-operative Society not constituted under a Statute or the relation with its employees is not governed by statute. The observation made therein may be reasoning for arriving at the question that was called upon to be decided by the Apex Court. But it cannot have general application when the Court was not called upon to decide the issue before it as to whether a Co-operative Society by virtue of its registration under the Cooperative Societies Act would ipso facto make such society amendable to writ jurisdiction . In the said judgment, reference has made that it is one thing to affirm the jurisdiction another to authorize its free exercise like a bull in a china shop in reference to the exercise of power under Article 226 of the Constitution. The Apex Court had spelt out wise and clear restraint on the use of the extra-ordinary remedy and High Court will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exception circumstances cry for timely judicial interdict or mandate. The member of law is justified and a potent drug judiciously administered. Speaking in critical retrospect and portentous prospect the writ power has beyond large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may caste a peril to human rights. It was therefore held that the award here is not beyond the legal reach of Article 226, although, this power must be keep in severely judicious leash.
26. It was further held that in view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore, the appellant is an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not necessary to examine the question if Article 226 makes a divide between public law and private law. In the light of the above observation in the said judgment, the Apex Court had proceeded to observe the extent of the application of Article 226 of the Constitution. Those subsequent observations are to be read in the light of observation, which it follows. The characteristic of the said Land Development Bank, was noted in the said judgment in paragraph 20 to the extent that the Registrar of Co-operative Society for the State of U.P. shall be the Trustee for the purpose of securing the fulfillment of the obligation of the State Land Development Bank. The Instrument of Trust executed between the appellant and the trustee as modified or substituted from time to time requires approval of the State Government. The Board of Directors may issue debentures of various denominations with the previous sanction of the State Government and the Trustee. The State Government may impose such terms and conditions against the unconditional guarantee by the State Government for repayment in full of the principal and payment of interest thereon or on the security of mortgage charges or hypothecation etc. The State Government constitutes a guarantee bank fund on such terms and conditions as it may deem fit under Section 9 of the Bank Act, 1964 for the purpose of meeting losses that might arise on account of loans and advances given by the Land Development Bank on the security of mortgages not being fully recovered due to such circumstances as may be prescribed. The guarantee funds shall be maintained by the Finance Department of the State Government in the Public Accounts Section of the State Accounts. Thus, the Apex Court had come to a finding that the State Government controls the affairs of the Land Development Bank though it functions as a Co-operative Society and as such is an extended arm of the State and thus, an instrumentality of the State of authority mentioned in the Article 12 of the Constitution. After having held as above, the Apex Court were not called upon to decide as to whether writ can be issued against a private body or such Cooperative Society which do not fit in the scope and ambit within which the Land Development Bank falls. The relations on the obiter may not justify the conclusion that all Co-operatives Societies though lacks deep and pervasive control of the State would also be amendable to writ jurisdiction even when discharging statutory function.
27. In the case of Pukhraj Manti v. U.P. Cooperative Spinning Mills Ltd., (1991) 1 UPLBEC 554, the learned Single Judge had proceeded on the basis that the U.P. Co-operative Spinning Mills Ltd. was a public body. On the same analogy that a company, a society incorporated or unincorporated may be a body constituted out of public but will not be a public body unless it satisfies the tests laid down in the case of Raman Dayaram Shetty (supra) and Ajai Hasia (supra) and more clearly clarified in Chandra Mohan Khanna (supra). If the tests as applied in the case of NCERT, ICPS CSIR then by no stretch of imagination the status of a Co-operative Society can place itself in a matter position if not a less.
28. Development of a Cooperative movement may be an object enshrined in the Constitution. Similarly, Social and economic development was equally an objection enshrined in the Constitution. If Co-operative movement may be treated us a responsibility of the Government and its development as a Government function then on same analogy, development of the economy by establishing companies or industries by private bodies or individuals or incorporation of societies registered under the societies Registration Act by private individual constituting private bodies with the object of catering to the need of the society or in other words public welfare and development of the society would also be constitution object and a Government function. The concept of extended arm of the State cannot be extended to an extent which he pass or exceeds the wholesome inhibitions and the wise and clear restrains that should be exercised by the High Court, would be a resulting in authorizing free exercise of this power like bull in a china shop.
29. The decision in the case of Radha Charan Sharma (supra) cannot be said to be impliedly overruled by reason of any decision on the question particularly the U.P. State Co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (supra). Even if it can be assumed that to the extent a Co-operative Society is an instrumentality or an extended arm of the Government as distinct from an ordinary Co-operative Society with that of Land Development Bank that too, discharging statutory obligation, a co-operative society may be amenable to writ jurisdiction while discharging its statutory obligation or duties but it may not if it does not satisfy the tests of instrumentality or extended arum-of the State when it discharges non-statutory functions. It is very difficult to accept that by reason of the decision in the case of Chandrabhan Dubey (supra), the decision in the case of Radha Charan Sharma (supra) by the Full Bench is no longer quote as binding precedent.
30. Even though the concept of extended arm or the instrumentality may be applied as such to private individual or a private body but then it is subject to the restraint to the wise and clear restrain and the whole some inhibitions laid down for the exercise of power under Article 226 by the High Courts.
31. In the case of Radha Charan Sharma (supra), the Full Bench was alive to the principle laid down in the case of Ramana Daya Ram Shetty (supra) crystallised in Ajay Hasia (supra) and had referred to the tests crystallized in the said decision for determining the characteristic of justice person as to whether it is an instrumentality or agency of the Government. Relying on the said test, it has held that if a Co-operative Society is otherwise free from governmental control, it will not be an authority within the meaning of Article 12. Even when 42% to 60% of the shareholding is held by the State Government, it would not be an instrumentality unless it is shown that Government has its control in the management and taking of decision. Unless the Government controls the activities or decision making power of the managing authority, it cannot be a State within the meaning of Article 12. We may refer to paragraphs 14, 15, 16 and 17 of the said decision that following the discussion with regard to the ratio laid down in the case of the Ajay Hasia (supra) and Ramana Daya Ram Shetty (supra) in paragraphs 12 & 13 respectively. It had also held that the Co-operative Society that was dealt with the Full Bench was registered under the Co-operative Societies Act but its relation with its employees was not governed by any Regulations framed under Sections 121 and 122 of the U.P. Co-operative Societies Act, 1965 and thus, it was not discharging any statutory function in relation to its employees. It was also held that in Ajay Hasia (supra), there was a distinction in the application of the principle in relation to part 14 though it may have some relation with part 3 or part 4. Reference may be had in order to appreciate the ratio in exactitude as hereinafter :
'14. This development of the law was inspired in part III and the Directive Principles of State Policy in Part IV of the constitution should not be rendered futile, meaningless and ineffective by the State Transferring some of its governmental activities to juristic persons like Corporation and Co-operative Societies. If a Corporation is found to be mere agency or instrumentality of the Government owned and controlled by it, it is, in fact, an incarnation of the Government. Such an agency must equally obey the Constitutional Limitations of the Fundamental Rights and the Directive Principles.
15. It is obvious that a juristic personality like a Co-operative Society which is registered under the Act but is otherwise free of Governmental control will not be an authority within meaning of Article 12. In the present case, it has been stressed that 40 to 50 percent of the share-holding of the Federation is owned by the State Government. The President of the Federation is the Registrar of Co-operative Societies, a Government servant, and the Secretary of the Federation is the Deputy Registrar, another Government Servant. The petitioner has not indicated what is the Constitution of the Federation, in which organ or the Federation is the power of management taking decisions resides. It has not been shown how far the Government controls the activities or decision making power of the managing authority of the Federation. In these circumstances, it is difficult to hold that the Federation was an authority within meaning of Article 12.
16. It is unnecessary to dilate on this aspect further because in Sehravardi's case (supra) the Supreme Court itself appended a note of caution. It observed :
'It is also necessary to add that merely because a juristic entity may be an 'authority' and therefore 'State' within the meaning of Article 12, it may not be elevated to the position of 'State' for the purpose of Articles 309 and 311 which find a place in Part XI. The definition of 'State' in Article 12 which includes an 'authority' within the territory of India or under the control of the Government of India is limited in its application to only Part III and by virtue of Article 36 of Part IV, it does not extend to the other provisions of the Constitution hence a juristic entity which may be 'State' for any purpose of Part XIV or any other provisions of the Constitution.'17. In the present case the controversy is in respect of suspension order passed in service in disciplinary power of the Federation. Learned Counsel for the petitioner did not even suggest that Articles 14 or 16 of the Constitution has, in any manner, been violated. The petitioner hence cannot claim the relief of reinstatement on the analogy of Article 309, 310 and 311 of the Constitution. In such a case as the present one, the rule laid down in the Smt. J. Tewari v. Smt. Jwaladevi Vidya Mandir, that no reinstatement can be claimed against a private body even if the order passed by it is found to be wrongful, may well apply, in Devendra Pratap Singh's case (supra), it was only observed that a duty of public nature even if it is non-statutory may been force by a writ of mandamus against a non-statutory body. For this view, it relied on the observations of the Full Bench of this Court in Aley Ahmad Abadi (supra). It is unnecessary for us to elaborate or discuss the matter further because as already seen this specific aspect does not, on the facts of the case, arise. No rule involving a duty of public nature has been shown to have been violated.'
32. Thus, it is very difficult to accept the proposition that this decision has lost its significant as quotable precedent by reason of the decision in the case of Chandrabhan Dubey (supra).
33. It may be observed that on the one hand the extent of exercise of power under Article 226 is being liberalized at the same time, the Apex Court had always been harnessing the same within the wise and clear restraint and wholesome principle of inhibitions. At the same time, it is extending even to private individuals or private bodies with the rider when it discharges statutory or public duties. The expression 'public duty' has not been used in its generic meaning. The expression 'public duty' or 'public function' has to be read within the scope and ambit of the principles laid down in Ramanna Daya Ram Shetty (supra) crystalized in Ajay Hasia (supra) since been explained and applied in the case of Chandra Mohan Khanna (supra).
34. Now let us examine the extent of public duty performed by a Co-operative Society. A primary Co-operative Society, if manufactures liquor and markets the same can it be said that it is discharging a public function or sovereigns duty or public duty? Surely, manufacturing of liquor can neither be a public function nor be a public duty nor a sovereign function. Such manufacturing and marketing is done with a motive oriented by profit. It is a business activity, which is being carried on. Such business activities are being carried on by a group of persons collectively. Such collective persons form a body. The participation in such body is united by shares of the each individual member. If such body in a society registered under the Societies Act can it be said that it is charging the public function? In case it is registered under the Companies Act as a Private Limited Company or a Public Limited Company, then can it be said it is discharging public duty Similarly, if it is registered under the Co-operative Societies Act, then, can the activities assume a different complexion by the same body only being registered under the Co-operative Societies Act which could have been registered as a Society or Company? In part 4 of the Constitution directive principles of State Policy have been laid down. The said directive principles may not be enforceable by Court but the principles therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Article 38 requires the State to strive for promotion of welfare of the people by security and protecting a social order in which justice, social economic and political is ensured by minimizing the inequalities in income and endeavoring to eliminate inequalities in status, facilities and opportunities not only among individual but also among group of people residing in different areas. In Article 38, it is also the duty of the State to direct its policy towards securing the ownership and control of the material resources of the community so distributed as best to serve the common good and the operation of economic system in a manner not to concentrate wealth and means of production to the common detriment. In Article 32A, the State is required to take steps through adequate legislation or otherwise for securing participation of workers in the management of undertakings establishment or other organizations engaged in industry. Thus, the above policies are policies to endeavor for economic development. It may be developed through Co-operative process or through other means. If an undertaking run by a body registered under the Co-operative Society aids the policy of the State in that event, it does not contribute anything more than what is aided by other public bodies earring on identical activities.
35. A line is required to be drawn with regard to the distinction between the public function, public duty and non-public function and non-public duty or in other words private function and private duty. The task, though is not very easy yet there can be a tangible distinction though the line of demarcation action may not be easy nor be definite but still then these two can be distinguished and separated from one and the other. When the motive is profit making and when there is no State participation and when there is no State Control over the affairs and management of the organization provided they run of its wheels on rails set down by law, are some of test which indicates between private function and private duty an organization. Ours is a Welfare State. There are several non-Governmental Organization, which are oriented by non-profit motive and works with an end and object of welfare to the people or the society. Can such non-Governmental Organization, carrying welfare activities for the society, which is part of the duty of the State, be considered to discharge public function and public duty for the purpose if its being amenable to writ jurisdiction in relation to its contractual obligation or liabilities in between such organization and its employees Having regard to the decisions as are occupying the field the answer is not very ambiguous. On the other hand it is absolutely unambiguous and clear. The answer is simple in the negative. Unless it discharges statutory duty or it is a State within the concept as enunciated in the various decisions while interpreting either Article 12 or deliberating on Article 226, an organisation can not be said to be amenable to writ jurisdiction. The origin of writ jurisdiction has not extended or stretched to such an extent as to include every person or very kind of organization. The self-imposed restriction requires adherence.
36. In case of public interest litigation or class action where the person were little Indians, the Court had extended its jurisdiction for the purpose to activate the administration to take care of the grievances of such little Indians, then it was found that the administration had not discharged its obligation owing to which those little Indians were subjected to such victimization for which though remedy available but could not be afforded by such little Indian either such remedies were beyond their affordable means or they were not aware either of their rights or of the remedies or were so placed that they could not dare to seek any remedy in view of the peculiar circumstances in which they were placed, dreaded them to a mute and conciliating position accepting such victimization as a. fait accompli and had left the same to their fate that too deviating from the adversary system extending the concept of locus standi in respect of areas where Government owed its governmental functions in securing the object and policies enumerated in Part IV of the Constitution, but failed or neglected. Thus, those decisions cannot be brought to interpret the situation in a case where an individual being aware of his right and capable of approaching proper form for remedies available and thereby congesting the already over congested writ jurisdiction victually reducing the efficacy of the remedy and out maneuvering the whole system.
37. This Court in the case of Aley Ahmad Abidi v. District Inspector of Schools, Allahabad and Ors., AIR 1977 Alld 539, in a Full Bench had held that the committee of management of recognized intermediate college through a non statutory body yet it is amenable to writ jurisdiction where such committee is entrusted with statutory duties or conferred with statutory powers. It was held further that a writ petition against such committee of management is maintainable for enforcement of any legal obligation or duties imposed on such committee by a statute. The above decision recognizes the distinction between the statutory duty and non-statutory duty.
38. In the present case, the petitioner is governed by the Standing Orders, which is held not to be a statute in the case of Rajasthan State Transport Corporation (supra). Therefore, the petitioner in the present case has an alternative efficacious remedy which could be availed of before the forum established under the Industrial Dispute Act. When such an alternative remedy is available, the same cannot be allowed to be skipped over, as was held in the case of Chandrama Singh v. Managing Director, U.P. Co-operative Union, Lucknow and Ors., (1992) 2 UPLBEC 889, cystallized in Para 13 of the said decision which runs as follows :
'13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extra ordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or it is not established from the material non-record that there exist exception or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy an permit him to by pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and held statement in the petition that 'where is no other equally officacious of adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India'. The petitioner must furnish material facts and particulars to sustain such a plea.'
39. In the case of K. Krishnacharyule and Ors. v. Sri Venkateswara, Hindu College of Engineering and Anr., 1997 (3) SCC 571, a writ petition was held to be maintainable against a non-aided private educational institution where its employees sking equal pay for equal work with those of the Government institution on the ground that the element of public interest was presence since there was an interest created by Government in an institution to impart education which is a fundamental right of the citizen the teacher who imparted education, get an element of public interest in the performance of their duties. Imparting of education is definitely is not a business, which has relevance to the whole educational system, which is one of the governmental functions. Thus, the said decision cannot be equated with that of the functioning of a cooperative society carrying on business through a profit oriented motive. There is no element of public interest in the functioning of a cooperative society. Inasmuch as it is only the members of the society who are interested in the functioning of the society. Such members had invested in the society only for the motive of earning profits and nothing else. Though such profits are sought to be earned by these members assembling or joining in an organization registered under the Co-operative Societies Act. They could have got the same registered either under the Companies Act or under the Societies Registration Act or under the Factories Act. If such registration under any of the Acts, other than Co-operative Societies Act, excludes such organization from the purview of the writ jurisdiction, in that event, it is very difficult to accept, simply because it was registered under the Co-operative Societies Act. they having the same motive and same characteristic with the same purpose and same object that a co-operative society would assume a distinct characteristic. There cannot be any distinction in the organization nor it can be said that element of public interest is infused simply because of its incorporation under the Co-operative Societies Act.
40. Reliance on the decision in the case of Air India Statutory Corporation and Ors. v. Union of India and Ors., 1997 (9) SCC 377, placed by Mr. Sudhanshu Dulia, learned Counsel for the petitioner does not held us much since, in the said case the Corporation was a statutory corporation though carrying on commercial activities yet it was held to be an organization of the Government. Even absence of deep and pervasive State control would to take it out of the characteristics of an instrumentality an agency on account of its being a statutory corporation. While considering the scope of applicability of writs against the said statutory corporation in relation to its employees while dealing with Contract Labour (Regulation and Abolition) Act, 1970, as amended by Amendment Act 14 of 1986, the Apex Court has held that the Corporation was amenable to writ jurisdiction. The said statutory corporation stands altogether on a different footing from a Co-operative Society, which is not a statutory orgnization. Neither the present question relates to the Contract Labour (Regulation and Abolition) Act, 1970 nor any relation to its obligation under the said 1970 Act, with which the entire object of the Apex Court was over whelmed. It was in the light of its obligation under the Contract Labour (Regulation and Abolition) Act, the Apex Court had approached to the answer the question and had laid down the principle on which an organization can be amenable to writ jurisdiction. The said principles also does not eliminate the concept of instrumentality and agency or an arm of the Government and the element of public interest. In the said case the public interest was the elimination of the discrimination in between the regular employee and contract labours. The entire approach in the said decision was oriented with the view as enunciated in the Paras 14, 15, 25, 26 and 27 of the said decision. In view of the distinction in the constitution and the context in which those observations are made, the cooperative society cannot fit in the ratio decided therein to clinch the issue involved.
41. Even if there might be any scope of harboring a different view from that of the Division Bench in the case of Jagveer Singh (supra), yet a Single Judge is not supposed to detract itself from the ratio decided by the Division Bench in view of its binding nature as precedent. A Single Judge cannot take liberty in disagreeing with the view taken by the Division Bench. The Single Judge is bound by the ratio decided by the Division Bench and obliged to follow the same even if it may not be in agreement with the view. The Full Bench of this Court in Rama Pratap Singh and Ors. v. State of U.P. and Ors., 1995 (1) All. Civil Journal 200, itself has laid down the principle in the following manner :
'The Full Bench in Pritam Kaur's case (supra) on its part, held, 'It is equally necessary to highlight that the binding nature of precedents generally and of Full Benches in particular, is the King-pin of our judicial system. It is the bond that binds together what otherwise might well becomes a thicket of individualistic opinions resulting in a virtual judicial anarchy. This is a self imposed discipline which rightly is even of other Schools of Law'. The Bench further added.' The very use of the word 'binding' would indicate that it would hold the field despite the fact that the Bench obliged to flow the same may not itself be in agreement at all with superior Courts and of Larger Benches have to be followed unhesitatingly whatever doubts one may individually entertain about their correctness. The rationale for this is plain because to seek a universal intellectual unanimity is an ideal too Utopian to achieve. Consequently, the logic and the rationale upon which the ratio of a Larger Bench is rested, are not matters open for reconsideration. Negatively put, therefore, the challenge to the rationale and reasoning of a Larger Bench is not a valid ground for unsettling it and seeking a reopening and re-examination of the same thus putting the question in flux afresh.'
The reference was answered in these terms, 'it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a Larger Bench and thus put the law in a farment afresh. The ratios of the Full Benches are and should be rested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a Larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a Larger Bench of the same Court. Secondly, where it can be held with certainly a co-equal Bench has laid down the law directly contrary to the same, and, thirdly, where it can be conclusively said that the judgment of the Larger Bench was rendered per incuriam by altogether finding to take notice of a clear cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration.'
42. Thus, in view of the decision in 'the case of Jagveer Singh (supra) by the Division Bench under the ratio whereof the question raised by Shri Sudhanshu Dulia is fully covered, in the present case this Court is unable take the liberty or express its disagreement to the extent of denying the relief to the petitioner. Though however the reason for disagreement may be noted in the judgment as above so that when it comes to the Division Bench, if occasion so arise, the Division may apply its mind and settle the ratio meeting the point of disagreement in a appropriate manner as it may deem fit.
43. Thus, following the decision in Jagveer Singh (supra), this writ petition is held to be maintainable, as such let us now examine the case on its merits.
44. In this case the petitioner was appointed as a clerk/typist in Bajpur Cooperative Sugar Factory Ltd., Bajpur by an order dated 16-12-1984 and it was initially for a period of three months and he was being re-appointed from time to time and thus continued till December, 1989 with artificial break. Thereafter by an order dated 23-4-1990 the petitioner was appointed temporarily as a clerk/typist with effect from 1-1-1990 and since then the petitioner had been continuing. The District Magistrate was appointed as Administrator of the said Sugar Factory whereupon the petitioner's service was placed at the disposal of the District Magistrate and was deputed in his Department for doing the clerical and typing work since 27-9-1995. It is contended, however, that no formal order was passed. It is further contended that since the petitioner was employed in the sugar factory his service could be utilized by the District Magistrate as an Administrator of the factory keeping his work confined to the activities of the Factory. Instead, his service was utilized for all routine jobs in the office of the District Magistrate, which had nothing to do with the Sugar Factory. By an order dated 25-12-1996. The petitioner was attached to the Court of the District Magistrate for doing the clerical and typing job, which is apparent from Annexure 1-A, The petitioner continued to perform the said job for more than three years during which he had been on various tours assigned by the District Magistrate who utilized him as a Stenographer. But, however, he received his salary from the Sugar Factory all these time. The petitioner was completed to take medical leave on 6-1-1999 and had reported to duty on 1-2-1999 when he was asked to report for duty at Sugar Factory but respondent No. 1 being General Manager did not permit him to resume his duty on the ground of absence on instruction of Respondent No. 2, District Magistrate despite his request no release order was passed by respondent No. 2. District Magistrate whereas in the meantime a notice to show cause was issued on 9-1-1999 on account of his absence alleging violation of Clause 22(8) of the UP. Distillery Industry Employment of Workmen and Conditions of Service Standing Order, 1986. The petitioner had submitted his reply on 11-1-1999 intimating his inability to attend the office. In the charges it was specified that the petitioner was absent from 1-1-1999 whereas the Administrative Officer, Collectorate, Rudrapur had certified that the petitioner was present in the office of the District Magistrate between 1-1-1999 and 6-1-1999 as is apparent from Annexure-8 to the writ petition. Whereas the petitioner was on medical leave from 7-1-1999 till 31-1-1999. Thereafter, the General Manager, respondent No. I has issued him another show cause notice dated 15-3-1999 in the said show cause notice which is Annexure-9 to the writ petition, the petitioner was not asked to submit any reply. Whereas the petitioner was asked to show cause why his service should not be terminated. It is alleged that before issuing the said show cause notice by the General Manager, no enquiry was ever held, no charge sheet was every given, and no enquiry officer was ever appointed even it was not shown ?.z to whether any enquiry was ever contemplated against the petitioner By his letter dated 22-3-1999 the petitioner had replied to the said show cause notice and had denied all the allegation made against him. He had also pointed out that during the last 15 years he had never taken medical leave before January, 1999 and that he was entitled to 240 days medical leave and that he had taken only on two or three days in a year. By an order dated 21/23-4-1999 the petitioner service was terminated on the ground of misconduct as it apparent from Annexure-11.
45. Mr. A. K. Misra, learned Counsel for respondents wanted to file counter affidavit in this case. But after having and perusing the material as is discussed hereinafter it does not seem that there could be any improvement through affidavits in the present case since the impugned order contained in Annexure-11 speaks for itself. The order contained in Annexure-11 having not disclosed any material with regard to giving of an opportunity to the petitioner in the form of issuing a charge sheet and holding of an enquiry into the charges as apparent from Annexure-11, which is ex-facie illegal, irregular and malaflde. No. amount of affidavit can improve the situation unless Annexure-11 is claimed by the respondents as ingenuine. In case the order dated Annexure-11 is the order passed by which the petitioner(s) service is dispensed with and is claimed to be genuine, in that event, there is no scope of improving the situation by filing counter affidavit. The matter was being heard for over a quite long period and it was heard consecutively for almost on six days as is apparent from the order sheet. It was not contended by the learned Counsel for the respondents that the orders contained in Annexures-9 and 11 are ingenuine. Therefore, I do not find any reason to allow him to file counter affidavit as this stage.
46. Heard Shri Sudhanshu Dulia, learned Counsel for the petitioner and Shri A. K. Mishra assisted by Shri Rajeev Mishra, learned Counsel for the respondents at length.
47. From the order contained in Annexure-11 it does not appear that any enquiry officer was appointed that any charge sheet was issued or that any enquiry was held against the petitioner. It shows that he was held to have misconducted himself on account of his absence as mentioned in the said order. Though admittedly it is mentioned that the petitioner had given reply but there is nothing to show that the petitioner's reply was unsatisfactory and therefore an enquiry was proposed or held or that there was any enquiry officer appointed and any report was submitted. Neither there is anything to indicate that the petitioner was given any opportunity to defend himself. On the other hand, the fact as disclosed in the pleadings supported by the annexures the petitioner had made out prima facie case of defence explaining the absence on account of his illness.
48. Therefore on the face of it as is apparent from annexure-11 that it is a case of no enquiry, no opportunity. On the other hand the fact as disclosed shows that the respondents had acted in an extreme high handed manner in terminating the service of the petitioner violating his legal right while inflicting a stigma of misconduct without giving him any opportunity to defend his cause. It is also not mentioned in Annexure-1 that before the notice to show cause dated 15-3-1999 contained in Annexure-9 asking the petitioner to show cause as to why his service should not be terminated, any charge sheet was ever issued to the petitioner or any reply was sought for against such charge sheet or that any enquiry officer was appointed or any enquiry was ever held or that he had considered who report of any such enquiry. The order contained in Annexure-11 dated 21/23-4-1999 appears to have been issued only on the basis of notice contained in Annexure-9. The notice dated 8/9-1-1999 contained in Annexure-6 does not appear to be a-charge sheet. On the other hand a plain reading of the said notice shows that a reply was called for in order to ascertain as to why an enquiry should not be proposed. It is not indicated in Annexure-11 that after the reply of the petitioner contained in Annexure-7 was received, the respondent No. 1 had ever proposed any enquiry to be held or had ever held any enquiry. Thus, notice contained in Annexure-9 asking the petitioner to show cause as to why his service should not be terminated cannot be sustained. Thus the order contained in Annexure-11 can also be not sustained. In such circumstances the orders contained in Annexures 9 and 11 to this writ petition are liable to be quashed and are accordingly hereby quashed. Let a writ of certiorari to issue.
49. In the facts and circumstances of the case it is evident that the petitioners service have been purported to be terminated on the ground of absence by reason of the clause contained in the Certified Standing Order by which on account of absence without leave or overstaying the sanctioned leave. In the case of D. K. Yadav v. J. M. A. Industries Ltd., 1993 (3) SCC 259, the Apex Court had held that there cannot be any automatic termination on account of leave without sanction or on account of overstaying of leave. In the present case, the petitioner was on duty between 1-1-1999 till 6-1-1999 in the office of District Magistrate as is apparent from the certificate contained in Annexure-8 issued by the Administrative Office in the Office of the Collectorate. The petitioner was on leave between 7-1-1999 till 31-1-1999. He sought to resume his duty on 1-2-1999? Thus, the petitioner was neither on leave without sanction or he had overstayed the sanction leave. Therefore, the petitioner service was not liable to be terminated automatically even under the Standing Order. Even if assuming but not admitting that the petitioner was on leave without sanction or had over stayed sanction even then his service could not have been terminated automatically. His service can be terminated only through a proper enquiry giving him proper opportunity as has been held in the case of D. K. Yadav (supra). Therefore, purported termination of petitioner's service appears to be wholly arbitrary, illegal and not bonafide.
50. In view of the facts and circumstances, as is apparent on the face of the record, the case being a case of excessive high handedness, this Court does not feel it proper to leave the case at the hands of the respondents who did not appear to have acted properly. Therefore, the respondents are directed to treat the petitioner as on duty from the date he reported for joining and the period of his absence may be adjusted against the leave due and permit him to resume duty in Sugar Factory despite the absence of any order or release by the District Magistrate and the respondent No. 1 District Magistrate is hereby directed to issue an order post facto release in favour of the petitioner. Let there be a writ of mandamus do issue to the above extent. The petitioner shall be paid all his arrears of pay, as admissible to him, within a period of one month from the date a copy of this order is produced before the concerned respondent. So far as current salary is concerned, the same may be paid to him as and when it falls due and payable.
51. The writ petition is thus allowed. However there will be no order as to cost.