Maiku And Anr. v. District Assistant Registrar, Co-Operative Societies And Ors.

1. Mr. A. Kumar, learned counsel for the petitioners, challenges the order dated 30th June, 1987 terminating the petitioners1 service being Annexure '2' to the writ petition, on the ground that the said order was passed after attaching stigma to the petitioners without holding any enquiry. Therefore, the said order should be set aside.

2. Mr. S. K. Roy holding, the brief of Mr. Triloki Nath counsel for the respondents, on the other hand, took a preliminary objection that the writ petition is not maintainable on the ground that the Society with which the petitioners claim to have been engaged is a Co-operetive Society and not a State within the meaning of Article 72 of the Constitution of India. His second ground of attack to the maintainebility of the writ petition is that the service or the petitioners was not governed by any statutory rules and, therefore, while terminating the service the order that was passed by the Society is not a function in discharge of public duty and, therefore, the exceptions is which mandamus can be issued are not present in the facts and circumstances of the case. Then again, according to him, no certiorari can be issued against a private Body.

3. Mr. A. Kumar, in counter to the said argument, contended that the order contained in Annexure '2' indicates that the same was passed on the direction of the District Registrar, who is a public functionary. An order passed by a public functionary is amenable to writ jurisdiction. According to him, the direction issued by the District Registrar is in discharge of his public duty and admittedly he is a public functionary. According to him the order is so bad that it fulfills the principle on which the principle of lifting the veil is attracted.

4. Mr. Kumar, in support of his contention, relied on the decision in the case of Sri Anadi Mukta Sadguru S. M. V. S. J. M. S. Trust v. V. R. Rudani, AIR 1989 SC 1607. Relying on para 14, he contends that if the rights are purely of a Private character no mandamus can be issued. If the Management is purely a private body with no public duty mandamus will not lie. These are the only exceptions in issuing mandamus. But the present case does not satisfy the tests or ingredients of exception as mentioned therein.

5. In the present case, though it is alleged that the petitioners' service was governed by the U.P. Co-operative Societies Employees Service Regulations, 1975, but nothing has been shown to this Court particularly by production of appointment letter that the petitioners were appointed following the provision for recruitment and appointment as provided in the said Service Regulations. The fact remains that the said 1975 Regulation applies only to the Society, the area of operation of which exceeds the limit of the District. Admittedly in the present case, the area of operation of the Society does not exceed the limit of the District. In paragraph 3 of the counter affidavit it has been specifically contended that the area of operation of the Society is confined within the Block Maudaha in Tehsil Mahoba, District Hamirpur. The said fact has not been denied in the rejoinder affidavit. Thus admittedly, the 1975 Regulation does not apply in the case of the petitioners.

6. In paragraph 14 of the Judgment in the case of Shri Anadi Mukta Sadguru S. M. V. S. J. M. S. Trust (supra) it has been observed by the Apex Court as under :-

"14. If the rights are purely of a private character no mandamus can be issued. If the management of the College is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent remedy of mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the university authorities. Employment in such institution, therefore, is not devoid of any public character. (See The Evolving Indian Administrative Law by M. P. Jain (1983) p. 166). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super added protection by University decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party."

7. Admittedly in the present case, the service condition of the petitioners is not governed by any statutory rules creating a legal right-duty relationship between the Society and the petitioners. Therefore, the relationship is purely of a private character. So far as the relation between the Society and the petitioners is concerned, the Management of the Society is purely a private Body with no public duties when the condition of service of the petitioners is not governed by the 1975 Regulation. The right claimed by the petitioners is purely of a private character. It does not come within the exception as contemplated in the said observation since the conditions of service of the petitioners is not governed by the said 1975 Regulations, in view whereof there Is no relationship of legal right, public duty between the parties herein.

8. Though, however, Mr. Kumar sought to espouse that the order of termination was effected pursuant to the order passed by the District Registrar who is a public functionary and has issued the direction in discharge of his public duty, but a plain perusal of the impugned order indicates that the service of the petitioners was terminated by virtue of a resolution adopted by the Committee of Management of the Society. Therefore, the order has been passed by a private body on its own independent decision, namely, a Resolution to which it has given effect. The alleged order or direction can not have any impact on the Resolution when the same has been adopted by the Committee of Management. Even then the petitioners having not been governed by the 1975 Regulations, the alleged direction or order can not be treated to be an order though it might be a picus wish wholly outside or beyond the scope of the duties and functions of the District Registrar. Admittedly the District Registrar is a public functionary but even if it is assumed that he has passed an order or direction for discharge of the petitioners pursuant to which the petitioners were discharged, then again there are two difficulties, namely, that the order has not been passed by a public functionary. Secondly even if such order is passed, the same is not in discharge of public duty. At the same time the order is passed by a private body only on the basis of its own resolution. The direction or order of the District Registrar may be a motive but can not be said to be a foundation.

9. Therefore, by no stretch of imagination, though argued very efficiently by Mr. A. Kumar, in the facts and circumstances of the case, the peresent cause of action can not be brought within the ambit of those cases which could attract invocation of writ jurisdiction. In view of the above observation, it appears wholly unnecessary to refer to other judgments cited by Mr. Kumar, namely, a Single Judge decision in the case of U.P. Bank Employees Union v. District Co-operative Bank Ltd. (1991) 2 UPLBEC 1267 and the decision in the case of Lalji Srivastava v. Allahabad District Co-operative Bank Ltd., (1994) 1 UPLBEC 297, rendered by a Single Judge. Both these decisions have been rendered by this Court. Inasmuch as the same cannot improve upon the situation because of the facts and circumstances of the present case which does not satisfy the tests as expressed in paragraph 14 in the case of Shri Anandi Mukta Sadguru S. M. V. S. J. M. S. Trust (supra).

10. In the case of Praga Tools Corporation v. Sri C.A. Imanual and Ors., (1969) 3 SCR 773, the Apex Court had held :

"In our view the High Court was correct in holding that the writ petition filed under Article 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement. No doubt. Article 226 provides that every High Court shall have power to issue to any person of authority orders and writs including writs in the nature of habeas corpus, mandamus etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an officer which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. See Sohan Lal v. Union of India, 1957 SCR 738. In Regina v. Industrial Court and Ors., (1965) 1 QB 377 mandamus was refused against the Industrial court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. "This Court has never exercised a general power" said Bruce, J., in R. v. Lewisham Union, (1897) 1 QB 498 (501) "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it is legal right to the performance of a legal duty but one against whom it is sought. An other of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their officer and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can be issued, for instance, to an official a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. (Of Halsbury's Laws of England, (3rd ed.) Vol. II, p. 52 and on wards)."

11. In the case of Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888, the Apex Court had observed ;

"14. This brings us to the next point for consideration as to whether or not the plaintiff-respondent's case fell within the exceptions laid down by this Court to the general rule that the contract of personal service is to specifically enforceable. In this connection, as early as 1964, in S. R. Tewari v. District Board Agra, (1964) 3 SCR 55 at p. 69 (AIR 1964 SC 1680 at p. 1682) this Court observed as follows :

"Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognized. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do."

To the same effect is the decision of this Court in Executive Committee of U. P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi, (1970) 2 SCR 250 ag p. 265 :AIR 1970 SC 1244 at p. 1253 where it was observed as follows;

"From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognised exceptions to this rule and they are. To grant such a declaration in appropriate cases regarding (1) A public servant who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute."

15. In Indian Airlines Corporation v. Sukhdeo Rai†., AIR SC 1828 (supra) this Court also observed as follows :

"It is a well settled principle that when there is a purported termination of a contract of service, a declaration, that the contract of service still subsisted, would not be made in the absence of special circumstances because of the principle that courts do not ordinarily grant specific performance of service. This is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The relationship between the person appointed and the employer would in such cases be contratual, i. e. as between a master and servant, and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined."

To the same effect is the decision of this Court in Bank of Baroda v. Jewan Lal Mehrotra, (1970) 2 Lab LJ 54, 55 where this Court observed as follows :

"The law as settled by this Court is that no declaration to enforce a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravention of Article 311(2) where reinstatement is sought of a dismissed worker under the industrial law by labour or industrial tribunals, (2) where a statutory body has acted in breach of a mandatory obligation imposed by statute."

16. In the Sirsi Municipality's case AIR 1973 SC 855 the matter was exhaustively reviewed and Ray, J., (as he then was) observed as follows :

"The cases of dismissal of a servant fall under three broad heads, purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages, Just as a contract of employment is not capable of specific performance similaily breach of contract of employment is not capable founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal service. Such a declaration is not permissible under the law of Specific Relief Act.

The second type of cases of master and servant arises under Industrial Law. Under that branch of Law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant.

The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute."

17. On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. The rule, however, is subject to three well recognized exceptions (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India ; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law, and (iii) where a statutory body sets in breach or violation of the mandatory provisions of the statute."

12. In the case of Ram Lakhan Pathak v. District Assistant Registrar, Co-operative Societies, Kanpur and Ors., 1996 AWC 20 it has been held that Co-operative Society is not an authority within in the meaning of Article 12. In paragraph 3 of the said judgment, it has been observed by the Division Bench as under:

"3. Central society has been defined by Section 2 (d-1) of the U. P. Co-operative Societies Act (hereinafter referred to as the Act), according to which 'central society' of central co-operative society means a "co-operative society, which has any co-operative society as its ordinary member and is not a primary co-operative society." One of the essential conditions of the central society is that any other co-operative society should be its ordinary member. There is neither any averment in the writ petition and the rejoinder affidavit that the petitioner's society is a central society nor is there anything on the record to show that the conditions of service of the petitioner are governed by statutory rules and regulations. Reliance by the learned counsel for the petitioner on paragraph 4 on the counter-affidavit can be of no assistance to him, because this paragraph also does not contain any such altagation . On the other hand, in paragraph 5 of the counter-affidavit. It is specifically mentioned that the petitioner's society is a private body. Full Bench of this Court in Radha Char an Sharma v. U. P. Co-operative Federation, 1982 ALR 342, has held that co-operative society is not an authority within the meaning of Article 12 of the Constitution unless it is an instrumentality of the State. In the instant case, there is nothing on the record to establish that the petitioner's society is the instrumentality of the State. In Ahmad Abidi v. District Inspector of Schools, AIR 1977 All 539 (FB), it has been laid down that even a person or society will be amenable to the writ jurisdiction under Article 226 of the Constitution. If it exercises any statutory power or discharges statutory duties. In the instant case, that is also not the position. The preliminary objection raised by the learned counsel for the respondent, is therefore, liable to be accepted."

13. The said judgment relied on the case of Radha Charan Sharma v. U. P. Co-operative Federation and Ors., 1982 ALR 342 (FB) rendered by a Full Bench of this Court holding that the U. P. Co-operative Federation Ltd. is not a local authority within the meaning of the State as defined in Article 12. In paragraph 16 of the said judgment it has been held as follows :

"16. 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 60 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 body of the Federation is the power of management and 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 circumstance, it is difficult to hold that the Federation was an authority within meaning of Article 12."

14. Therefore, the contention of Mr. Kumar can not be satisfied on this score.

15. Even on merits, in the counter affidavit, it has been disclosed that there was an enquiry held against the petitioners but the order terminating the service does not show that it was done pursuant to the finding of guilt found in the enquiry so held. Therefore, the said contention of Mr. S. K. Rai can not be accepted inasmuch as the order can not be improved by adding anything to the order itself since the order does not indicate to have been passed pursuant to an enquiry.

16. In the case of State of U. P. and Anr. v. Premlata Mishra (Km.) and Ors., (1994) 4 SCC 489 it has been held that even if service is terminated after serving charge-sheet without proceeding with the disciplinary proceedings by making an assessment whether a person should be retained in service or not when he is not a confirmed one the question is to be found out as to whether the misconduct was a foundation to the termination or a motivation only. If it is a motivation, in that event, such termination can not be said to be bad if it is a termination simplicitor without proceeding with the disciplinary proceeding in respect of misconduct. In the said case, it has been held :

"It is settled law that the court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an aciion according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated in terms of the order of appointment or rules giving one month's notice or pay/salary in lieu thereof. Even if an enquiry was initiated it could be dropped midway and action could be taken of the rules or order of appointment. The same principle applies to, to the facts in this case. It is seen that the respondent was appointed by direct recruitment by selection committee constituted by the Government in this behalf and on finding about the suitability to the post as an Assistant Project Officer the respondent was appointed and was posted to the place where she had joined. Thereafter her work was supervised by the higher officers and two officers have submitted their reports concerning the performance of the duties by the respondent. She was regularly irregular in her duties, insubordinate and left the office during office hours without permission etc. On consideration thereof the competent authority found that the respondent is not fit to be continued in service as her work and conduct were unsatisfactory. Under these circumstances the termination is for her unsuitability or unfitness but not by way of punishment as a punitive measure and one in terms of the order of appointment and also the Rules."

17. The above view was taken by the Apex Court as back as in 1964 in the case of Champaklal Chiman Lal Shah v. Union of India and Ors., AIR 1964 SC 1854 while the application of Article 311(2) was being considered. In the said case it was held :

"Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant."

18. In the present case on facts there is nothing to show that the termination was effected on account of finding of guilt in the enquiry. Even if the alleged misconduct might have influenced the taking of the decision not to retain the petitioner in service, the same would only be a motive and not a foundation for termination of the service, Unless it is shown that the same was a foundation and not a motive, the order of termination can not be interfered with.

19. In the result the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.