1. The Srivilliputtur Cooperative Spinning Mills Ltd., hereinafter referred to as the mills, is managed by a Board of Directors consisting of 15 members as mentioned in by-law 20 of the mills. Under by-law 20(15) one representative of the workers of the mills elected from among themselves and co-opted by the Board of Directors is entitled to be a members of the Board of Directors. The petitioner, K. Ramraj, employed as an oiler in the fly-frame department of the mills, was elected by the workers of the mills in an election held on 26-12-1968, to fill up the vacancy caused by the expiry of the term of the prior representative of the workers on 31-12-1968. The question of his co-option as a member of the Board of Directors, as required in by law 20(15) of the mills, was in agenda of the meeting of the Board of Directors journed after the first two items of the agenda were disposed of and before the other items of the agenda, including the co-opted as a member of the Board of Directors could be taken up for consideration. the adjourned meeting took place on 30-1-1969 but the petitioner was not co-opted as a member of the Board of Directors in view of the fact that he became disqualified to become a member of the Board according to the standing orders of the mills by reason of his having been punished by a warning given to him by the factory manager on 22-1-1969. The petitioner has come up to this court for the issue of a writ of certiorari to quash the proceedings of the meeting of the Board of Directors on 30-1-1969 and for granting him a writ of Mandamus directing the respondent to co-opt him as a member of the Board of Directors of the mills.
2. The petitioner does not dispute the fact that a punishment of warning for misconduct would, under the relevant standing orders of the mills disqualify him from being a member of the Board of Directors. But the case of the petitioner is that he was never warned by the management for any misconduct, that the action of the Board of Directors in not co-opting him is mala fide, that he has been victimised since certain members of the Board, and in particular, the ex-chairman, did not like his entry into the Board, that the alleged punishment of warning has been got up subsequently and that he was served with the order only on the midnight of 30th January 1969.
3. It is necessary to refer to the circumstances under which the petitioner was given the punishment of warning. The petitioner went on casual leave from 24-12-1968 to 30-12-1968. On 31-12-1968, he sent a telegram from madras to the manager requesting him to extend his leave from 31-12-168 to 4-1-1969 and this leave was granted by the factory manager. The petitioner's case is that he was taken ill and that he again sent a telegram from Vellore requesting for extension of leave from 5-1-1969 to 18-1-1969. It should be noted that this telegram was sent by the petitioner only on 6-1-1969, though the leave already granted to him expired even on 4-1-1969. This factory manager passed an order on 6-1-1969, refusing the request for leave and issued a memo dated 8-1-1969 to the petitioner about it calling upon him to explain as to why disciplinary action should not be taken against him and why he should not be punished. The petitioner was required to submit his explanation in two days. The memo was sent by registered post to the address given by the petitioner to the mills but it was returned with a note that the whereabouts of the patina were not know, The memo was subsequently given to the petitioner in person on 19-1-1969, when he returned to duty. The petitioner submitted his explanation on 20-1-1969. The factory manager has passed an order on the reverse of the memo. According to the petitioner, the factory manager orally informed him that further action on the and advised him not to act in the same manner in future. The following sentence in the order of the factory manager lends support to the statement of the petitioner:
'The worker should have sent a detailed letter in continuation of his telegram from Vellore which he has failed to do so. He is instructed that he should not act like this in future as it is first time.'
But there is one other sentence in the order, which has been scored out. It is as follows:
'For further action if any needed the matter is to be referred to the legal opinion as he is elected for the workers of the mills by the workers and do things accordingly.'
The factory manager has signed after writing the above sentence, which has been scored out. But below it he had added the following sentence and again signed the order:
'The reason given by him for not sending a letter is not at all satisfactory. In the interest of maintaining discipline in the factory he is warned to guard against such lapses'.
The fact that the petitioner was served with the order of the factory manager warning him for his misconduct in staying away without leave only on the midnight of 30-1-1969, cannot lead to the inference that it was brought into existence after the meeting of the Board of Directors on 30-1-1969 that five of the members of the Board of Directors left the meeting protesting about the action of the Board in not co-opting the petitioner as a member of the Board. In their objection letter which has been recorded along with the minutes of the meeting, they have stated that the factory manager has antedated the order of the punishment of warning against the petitioner. This would show that the order of the factory manager whether antedated or not was before the Directors at the time of the meeting on 30-1-1969. It follows that it should have come into existence prior to the meeting. Hence the contention of the petitioner that the order of the factory manager should have been brought into existence after the meeting cannot be accepted. It is true the question still remains whether the factory manager passed the order on 22-1-1969, as it would appear from the order, or only subsequently. I am, however, unable to accept the contention of the learned counsel for the petitioner and that the Board of Directors could not take that into consideration at the meeting held earlier. In these enquiries by domestic tribunals, the order comes into effect as soon as it is passed. If the contention of the petitioner is well-founded, a worker can evade receiving the order and contend that it does not take effect till he receives it. It may be that for the purposes of limitation and such other maters, the date of service of the order on the petitioner may be relevant. It is clear from the counter of the respondent that when the subject of co-option of the petitioner was taken for consideration at the meeting on 30-1-1969, it was represented by some of the Directors that some disciplinary action appeared to have been taken against the petitioner and thereupon the factory manager was called and he informed the Board about the order of warning passed against the petitioner on 22-1-1969.
4. The learned advocate for the petitioner relied on several circumstances to show that the order of punishment of warning is antedated and that the action of the Board is mala fide. One circumstance is that the petitioner was served with the order only on the midnight of 30-1-1969, and I have already referred to it. The contention of the learned advocate for the petitioner is that if really the order was passed on 22-1-1969 there was no reason why it was not served on him when he was attending the mils on prior dates. He relied also on the correction made in the order and urged that it should have been done only subsequently and not on 22-1-1969. He referred to the fact that there is no office note in the agenda for the meeting on 30-1-1969 and that if really there was a punishment of warning against the petitioner, it would have been mentioned by way of an office note in the agenda. But the explanation of the respondent is that as the meeting held on 30-1-1969, was only an adjourned meeting, no office-note was prepared for the several items in the agenda. Finally, the learned advocate for the petitioner mentioned that the factory manager himself had been removed subsequently from service and that the has filed a W. P. No. 427 of 1959 on the file of this court, and stated in the affidavit to the petition that he had made the alteration in the order subsequently at the instance of the Board of Directors. It is not, however, possible to rely on affidavits, which have not been filed in these proceedings. The learned advocate for the petitioner as a member of the Board of Directors came up for consideration. But the petitioner has not pleaded in his affidavit that the Board was actuated by improper motives in adjourning the meeting on 16-1-1969. It is true the facts mentioned above raise a certain amount of suspicion that the conduct of the Board of Directors in not co-opting the petitioner at its meeting on 30-1-1969, is not above board. But, on the materials placed before me it is not possible to find that the Board of Directors wanted to victimise the petitioner, or that they were actuated by any mala fide intention.
The averment in the affidavit of the petitioner is that he presumes that the ex-chairman must have apprehended that he (petitioner) was likely to act against him in the election of the Chairman and it is only to avoid such a contingency, he exercised his influence over the factory manager and compelled him to antedate the issue of the order of warning and that the factory manager succumbed to the influence of the ex-Chairman as charges were pending against him. He has also alleged in his affidavit that at the instigation of certain members of the Board and the ex-Chairman in particular, the factory manager has struck off the earlier order o his explanation and written the subsequent order of warning against him. In paragraph 8 of the affidavit, he has stated that he has been victimised since certain members of the Board, and in particular, the ex-Chairman, did not like his entry into the Board. Thus the attack made by the petitioner is only against the ex-Chairman and some of the members of the Board and not against the Board as such.
5. The learned advocate for the petitioner relied on fraud as a ground for certiorari and referred to the passage at page 683 of Basu's Commentary on the Constitution of India. Vol. III, 5th Edn.:--
'Fraud is regarded as an additional ground for certiorari from early times. Since fraud vitiates the most solemn of transactions and a superior court possesses an inherent jurisdiction to set aside orders of inferior courts vitiated by fraud and collusion, the superior court would issue certiorari in such cases, even where a statute precludes judicial review, provided the fraud is manifest on the record.' There can be no doubt about the said principles. But, as already stated, there are no sufficient materials to find that any fraud was perpetrated in this case to prevent the petitioner from being co-opted as a member of the Board of Directors.
6. The learned advocate for the respondent has raised a preliminary objection that no writ of certiorari or mandamus will lie against the Mills registered under the Madras Co-operative Societies Act 53 of 1961, under Art. 226 of the Constitution. He relied on the Bench decision of this court in Lakshmiah v. Sriperumbudur Taluk Co-op. Marketing Society Ltd., : AIR1962Mad169 . In that decision, Rajamannar C. J. has referred to the following passage from the judgment of Atkin L. J. in Rex v. Electricity Commrs. 1924 1 KB 171, as to the limitation on the power to issue prerogative writs:--
'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of King's Bench Division exercised in these writs.'
He has also referred to a passage in the judgment of Lord Goddard C. J. in R. v. Disputes Committee of Dental Technicians. 1953 1 all ER 327 as to the class of bodies to which the prerogative writs are issued
'The bodies to which in modern times the remedies of these prerogative writs have been applied are all statutory bodies on whom Parliament has conferred statutory powers and duties the exercise of which may lead to the detriment of subjects.'
Kailasam J., who was a party to the above Bench decision has held in Chidambaram v. Rathna Sarma, : AIR1967Mad182 , that 'after the enactment of the Madras Co-operative Societies Act, 1961, and the framing of the Madras Cooperative Societies Rules 1963, the decision in 1961 2 MLJ 279 = AIR 1961 Mad 169 is applicable'. The decision relates to violation of statuary rules and not merely top the bye-laws of the Co-operative Society, Alagiriswami, J., in W. P. 431 of 1968 (Mad) has considered the above decision of Kailasam, J., thought he has mistakenly referred to another decision of Kailasam J. in Sadasiva Reddiar v. Duraiswami Reddiar, (1966) 79 Mad LW 711 in which a similar question was considered instead of : AIR1967Mad182 , and found himself unable to agree with it. He has pointed out that the question is not whether, as considered by Kailasam J., the rules are statutory, but whether a writ would lie against a Co-operative society, which is not an 'other authority' within the meaning of that word in Art. 12 of the Constitution. He relied on the test laid down by Bass J. in Ranjit Kumar v. Union of India, : AIR1969Cal95 , that the expression 'other authority' in Art. 12 of the Constitution would apply only where the body exercises statutory powers conferred by the State affecting private individuals just as any other State action might do. the test is the same as the one enunciated by Lord Goddard C. J. already referred to. In Ramiah v. State Bank of India, (167) 32 FJR 339, a Bench of this court has relied on the Bench decision in : AIR1962Mad169 already referred to.
7. In Basu's Commentary on the Constitution of India, 4th Edn. Volume I. it is stated at page 122, that, literally, 'authority' means a person or body exercising power, or having a legal right to command and be obeyed and that in the present context. authority means the power to make laws, orders, regulations and bye-laws, etc., having the force of law. and also the power to enforce them. It is pointed out that 'other authorities' in Art. 12 of the Constitution of India refer to authorities other than those of local self-Government, who have power to make rules, regulations, et., having the force of a law e.g., a Bar council constituted under the Indian Bar Councils Act. XXXVIII of 1926, the Cochin Devaswom Board, the Income-tax Commissioner, etc., In Seervai's 'Constitutional Law of India' at page 152, the meaning to be given to the words ' other authorities' in Art. 12 of the Constitution of India is discussed. The learned author had expressed his doubts about the correctness of the decision in University of Madras v. Shantha Bai : AIR1954Mad67 , that the University did not fall within the definition of the word 'State' in Art. 12 of the Constitution and that the words 'local or other authority' in Art. 12 of the Constitution 'must be construed' ejusdem generis with Government or Legislature and so construed can only mean authorities exercising Governmental functions'. In Electricity Board, Rajasthan v. Mohanlal. : (1968)ILLJ257SC . the Supreme Court has pointed out how the High Court fell into an error in applying the principle of ejusdem generis when interpreting the expression 'other authorities' in Art. 12 of the Constitution. The Supreme Court has held that the expression 'other authorities' is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India. At page 1863 of the decision, it is pointed out that the expression 'other authorities' in Art. 12 of the Constitution will include all constitutional or statutory authorities on whom powers are conferred by law and that it is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. It has been held in that decision that there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence and that the Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.
8. In the Full Bench decision in Namboodripad v. Cochin Devaswom Board, AIR 1956 Trav-Co 19 at p. 21, it has been held that the Cochin Devaswom Board constituted under the Travancore-Cochin Hindu Religious Institutions Act 1950. will come within the ambit of 'other authorities' in Art. 12 of the Constitution of India. There can be no doubt about the actual decision as the Board was constituted under the Travancore-Cochin Hindu Religious Institutions Act for administering and managing Hindu religious institutions. It is pointed out in that decision that in its literal sense the word 'authority' means a 'body exercising power' and in the context of Article 12 that power must be considered as the power to issue rules, by-laws or regulations having the force of law and that the Cochin Devaswom had such powers.
9. Several provision of the Madras Co-operative Societies Act give power to the Registrar as defined in the Act to approve by-laws and amendment to by-laws made by a society, so long as they are not contrary to the Co-operative Societies Act or the rules framed there-under. It should be noted that a Co-operative Society is not constituted under an Act,. but it is only registered under the its power to make by-laws are not in the nature of laws or statuary rules. Thus in Arumugham v. Kadulundy Co-op. Urban Bank. : (1960)IILLJ207Ker it is pointed out that a Co-operative Bank is not a statutory body, but it is only a banking corporation registered under the Act, and that the by-laws framed by the Bank have no statutory force, merely because the provisions of the Act enable such by-laws have been violated, by the bank in holding the disciplinary enquiry against the petitioner the petitioner cannot avail himself of any remedy under Art. 226 of the Constitution of India. It is true in Dukhooran v. Co-op. Agricultural Association. Kawardha, : (1962)ILLJ353MP it has been held by a single Judge of that High Court that a Co-operative society registered under the Co-operative Societies Act, has power to make by-laws and that a Society so registered would fall within the meaning of 'state' as defined in Art. 122 of the Constitution of India. In arriving at that decision, reliance was placed on the decision in AIR 1956 T-C 19 above referred to. For the reasons already mentioned, it is not possible to accept this decision as correct.
10. In W. P. No. 965 of 1958 (Mad) etc., Balakrishna Ayyar, J., had to consider the nature of by-laws framed by a Co-operative Society. He pointed out how the word by-law is used in two different senses and covers two different categories of provisions, one class of by-laws having the force of statutory law while the other class of by-laws are of the nature of contractual obligations to regulate internal or domestic administration. The learned Judge has pointed out that regulations framed by statuary bodies like Municipal Councils or District Boards in relation to matters like the building of houses or the erection of factories or the conduct of markets or slaughter houses would fall under the first category, while regulations framed by companies or Co-operative societies for regulating their internal or domestic administration would fall under the second category. He held that the by-laws of the Co-operative Societies which he was considering were in the nature of private agreements between person forming the society and, that being so, the conduct of the Registrar who acted only on behalf of the society is not liable to be questioned by invoking the writ jurisdiction of this court. This decision was followed by Veeraswami, J., in W. P. No. 23 of 1962 (Mad(and by Srinivasan, J., in W. P. No. 782 of 1964 (Mad). It has been pointed out in the latter decision that the by-law is in the nature of a private agreement conferring a third party, though he may be a public official was not, when he exercised the power under the by-law functioning as a public official. In both these decisions, the attack made was against the order of the Registrar of the Industrial Co-operatives appointing a fresh Board of Directors for the Society in question under the powers conferred on him by virtue of the by-laws of the said society.
11. Reliance was placed on the unreported Bench decision of this court in W. P. Nos. 317 and 318 of 1951 (Mad) in support of the contention that a writ can be maintained against a Co-operative society. the Madurai Labour Union, which was a member of the Madurai Mills Workers Co-operative Stores Ltd., was expelled from membership by virtue of the amendments of by-laws, the legality of which were questioned in the said writ petitions;. It is clear from the decision in that case that reliance was placed on Halsbury's Laws of England for contending that a mandamus will not lie against a private corporation. The court expressed to consider whether a writ of mandamus could be issued in spite of the petitioner having an alternative remedy by way of suit. In the penultimate paragraph of that judgment, the question whether a writ of Mandamus can issue against a body like a Co-operative society, which is not a public body, has been raised and considered. it is clear for the discussion in that judgment that though a writ of Mandamus could be issued even against an ordinary company, it could only be enforce the performance of a statutory duty, Srinivasan J. has considered the above decision W. P. No. 1009 of 1964 (Mad), where an employee of a Co-operative Fire and General Insurance Society Ltd., came forward with a petition for the issue of a writ of mandamus directing the respondent-Society to for-bear from continuing to enquire into the charges against him. The learned Judge observed that 'though this decision furnishes a measure of support to the contention of the petitioner that is only for the reason that a Co-operative society was down that in all cases whatever may be the nature of the dispute, a writ can issue against a Co-operative Society.'' the writ petition was dismissed on the ground that the society in that case as the employer was not discharging a public duty, or any quasi-judicial function. In Shivendra Bahadur v. Nalanda college, : (1962)ILLJ247SC it was held that in order that a mandamus may issue to compel the governing body of college to do something, it must be shown that the statues framed by the University under Section 20 of the University of Bihar Act impose a legal duty and the petitioner has a legal right under the statute to enforce its performance. Thus, unless the petitioner can show that he has any right by virtue of the Co-operative Societies Act, or the statutory rules framed thereunder, which impose a corresponding legal duty on the society, he can have no right to move this court for a writ of mandamus. The learned advocate for the respondent urged that the petitioner is not without a remedy as Section 73 of the CO-operative Societies Act makes provision for settlement of disputes like the present one. By virtue of S. 73(1)(c) of the Act, if any dispute touching the constitution of the Committee arises between the society or its committee and any officer or a servant of the society it could be referred to the Registrar for settlement. It is not disputed that there is a dispute touching the constitution of the committee as the petitioner claims that he ought to have been CO-Board. the contention of the learned advocate for the petitioner is that till the Board of Directors, he cannot claim to be an 'officer' within the meaning of Section 2(d) of the Act. In any event, it cannot be denied that the petitioner is a servant of the Society and that there is a dispute between him and the Society as regards his right to be co-opted as a member of the Board of Directors. It is pointed out in Venkateswara v. R. S. Wadhwani, : 1983ECR2151D(SC) , that the rule that the party, who applied for the issue of a high prerogative writ should, before he approaches the court have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. But, in this case, there is no question of my exercising the discretion in the matter, when the petitioner could not invoke the writ jurisdiction of the court against the mills registered under the Co-operative Societies Act.
12. For the foregoing reasons, the writ petitions are liable to be dismissed and they are hereby dismissed. In the circumstances of the case, I make no order as to costs.
13. Petitions dismissed.