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Ram Saran v. State Of U.P And Others

Allahabad High Court

Aug 11, 1998

Judgment

Subsequent
References

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Factual and Procedural Background

The petition challenges an order dated 16.8.1989 terminating the petitioner’s appointment as Assistant Accountant in Chakaundh Farmers' Services (Co-operative) Society, Chakaundh, Banda. The petitioner had been employed at a salary of Rs. 300 per month under an appointment letter dated 24.12.1985, which stated that the service was liable to be terminated at any time without notice. The impugned termination was effected by the society on 16.8.1989, purportedly under Rule 4 of the U.P. Sahkari Karamchari Seva Niyamawali, and the petitioner was paid a month's advance salary pursuant to a resolution of the Sanchalak Mandal. The petitioner filed the present petition contesting the termination.

Legal Issues Presented

Whether the petitioner’s services could be terminated without recourse to disciplinary proceedings under Regulation 85 of the U.P. Co-operative Societies Employees Service Regulation, 1975.
Whether the U.P. Co-operative Societies Employees Service Regulation, 1975 applies to the respondent society — in particular, whether the society falls within the purview of Regulation 2(ix) (i.e., placed under the Institutional Service Board by Government notification).
Whether a writ petition under Articles 226/12 of the Constitution is maintainable against the Co-operative Society in the circumstances of this case (i.e., whether the society is a "State", "authority" or a person performing public functions amenable to writ jurisdiction).
What remedy (writ petition, civil suit or recourse to the Registrar under Section 128 of the U.P. Co-operative Societies Act, 1965) is appropriate when a co-operative society takes action such as termination of an employee’s service?

Arguments of the Parties

Petitioner's Arguments (Sri K.S. Misra)

The petitioner relied on Regulation 85 of the U.P. Co-operative Societies Employees Service Regulation, 1975, contending that termination required prior disciplinary proceedings as prescribed by that regulation.
The petitioner also relied on reported authorities (including Supreme Court and High Court decisions) holding that termination without following prescribed procedures was illegal, and sought relief on that basis.

Respondent's Arguments (Sri K.M. Sahai, Standing Counsel)

The standing counsel contested the maintainability of the petition on the ground that the petitioner’s service was not governed by any statutory rules or regulations (i.e., the U.P. Co-operative Societies Employees Service Regulation, 1975 did not apply to this society).
He submitted that the appropriate remedy, if any, was to institute a civil suit rather than invoke writ jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Singh v. Kisan Sewa Sahkari Samiti Ltd., Nehru Nagar Naidu, Distt. Meerut, (1997) 2 UPLBEC 1102	Held that Co-operative Societies not within Regulation 2(ix) of the U.P. Co-operative Societies Employees Service Regulation, 1975 are not "State" or "authority" within Article 12 and therefore no writ lies against such societies under Article 12.	The court relied on this decision to conclude that the present society is not shown to be placed under the Institutional Service Board by notification and therefore the 1975 Regulations do not apply to the petitioner; the society is not "State" or "authority" under Article 12 for the purposes of those Regulations.
Shiv Narain Shukla v. District Asstt. Registrar of the Co-operative Society U.P., Banda	Ratio that termination of an accountant of a Sahkari Samiti without following Regulations 84–85 of the 1975 Regulations was illegal.	The court distinguished this decision, noting that in Shiv Narain Shukla the question whether the Regulations applied to that society was not examined; because the present society is not within the notification in Regulation 2(ix), the petitioner cannot rely upon that decision.
Vijai Shanker Saini v. District Registrar Societies, U.P., Varanasi, 1997 (1) UPLBEC 262	Holds that a society not being "State" or "other authority" under Article 12 does not automatically subject it to writ jurisdiction, but the writ jurisdiction under Article 226 can extend to "any person" discharging public functions where public interest is involved.	The court cited this authority to acknowledge that writ jurisdiction may reach private bodies performing public functions; however, given available statutory remedy (Section 128 of the Co-operative Societies Act), the present petitioner was relegated to that remedy rather than having the writ entertained in these proceedings.
Air India Statutory Corporation v. United Union, (1997) 9 SCC 377	Illustrates the erosion of strict distinction between public law and private law remedies and supports the proposition that writ jurisdiction can be wide where public functions or public interest are involved.	Cited as supporting authority for the proposition that writ jurisdiction can reach private bodies performing public functions; used contextually in the court's analysis but did not alter the court's conclusion to dismiss the petition and direct alternate remedies.
K. Krishnamacharyulu v. Sri Venkateshwara Hindu College of Engineering, (1997) 3 SCC 571	Holds that private institutions performing public functions (e.g., providing educational opportunities) may be amenable to writ jurisdiction under Article 226 when an element of public interest is present.	Quoted to support the general principle that private bodies performing public functions can be subject to writ jurisdiction; nonetheless, the court in the present case preferred the statutory remedy under Section 128.
U.P. Co-operative Federation Ltd. v. Ram Singh Yadav, (1998) 1 UPLBEC 46	Supreme Court decision holding that removal of an employee without following the procedure prescribed in Regulations 84–85 was unsustainable.	The court observed that this Supreme Court decision is not helpful to the petitioner because the 1975 Regulations do not govern the petitioner’s service in the present case.
Agya Prasad Pandey v. State of U.P., (1991) 2 UPLBEC 1167	Relates to termination of a Forest Guard without complying with Rule 4 of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975.	The court considered this decision but held it inapplicable on the facts of the present case.

Court's Reasoning and Analysis

The court proceeded in the following sequence of legal analysis, staying strictly within the materials before it:

Examination of Terms of Appointment: The appointment letter (24.12.1985) contemplated that the petitioner’s service was liable to be terminated at any time without notice. The termination order dated 16.8.1989 purportedly invoked Rule 4 of the U.P. Sahkari Karamchari Seva Niyamawali.
Contentions of the Parties: The petitioner’s counsel argued that Regulation 85 of the U.P. Co-operative Societies Employees Service Regulation, 1975 required disciplinary proceedings before termination. The standing counsel contended that the petitioner’s employment was not governed by any statutory regulations and that the remedy, if any, lay in a civil suit.
Preliminary Legal Test — Applicability of the 1975 Regulations: The court relied on Ram Singh (1997) to state the governing test: the 1975 Regulations apply only to co-operative societies placed under the purview of the Institutional Service Board by government notification as specified in Regulation 2(ix). The court reviewed the record and found no material showing that the respondent society had been placed under the Board by such notification.
Consequent Conclusion on Regulatory Applicability: Because there was no record evidence that the society fell within Regulation 2(ix), the court concluded that the 1975 Regulations (including Regulation 85) did not govern the petitioner’s service. On that basis the society was not to be treated as "State" or "authority" within the meaning of Article 12 for the purposes of those Regulations.
Consideration of Authoritative Decisions Cited by Petitioner: The court examined the cases relied on by the petitioner (including Shiv Narain Shukla and the Supreme Court decisions). It distinguished Shiv Narain Shukla on the ground that applicability of the Regulations to the society in that case had not been examined; and it held that the Supreme Court decisions cited (e.g., U.P. Co-operative Federation Ltd. v. Ram Singh Yadav) did not benefit the petitioner because the Regulations do not govern his employment here.
Writ Jurisdiction and Available Statutory Remedy: The court recognised authorities (e.g., Vijai Shanker Saini, Air India, K. Krishnamacharyulu) showing that writ jurisdiction may extend to private bodies performing public functions. Nonetheless, the court emphasised that Section 128 of the U.P. Co-operative Societies Act, 1965 provides an efficacious statutory remedy — empowering the Registrar to annul resolutions or cancel orders of a society subject to procedural safeguards. Having regard to that statutory remedy, the court considered it proper to relegate the petitioner to Section 128 or to a civil suit.
Direction on Representation: The court added that if the petitioner preferred a representation to the competent authority exercising the power of Registrar under Section 128, that authority shall dispose of the representation in accordance with law.

Holding and Implications

Holding: The petition is DISMISSED.

Implications and direct consequences of the decision:

The court held that the U.P. Co-operative Societies Employees Service Regulation, 1975 does not apply to the petitioner because there is no material indicating the respondent society was placed under the Institutional Service Board by the government notification contemplated by Regulation 2(ix).
Because the Regulations do not govern the petitioner’s service, the petitioner cannot rely upon Regulations 84–85 (or Regulation 85) as a basis to invalidate the termination in these proceedings.
The petitioner was directed (as an alternate avenue of relief) either to institute a civil suit for appropriate relief or to approach the Registrar under Section 128 of the U.P. Co-operative Societies Act, 1965 for annulment of the resolution of the Sanchalak Mandal pursuant to which his services were terminated.
The court directed that if the petitioner prefers a representation to the Registrar under Section 128, the Registrar shall dispose of that representation in accordance with law (including the proviso and any stay powers therein).

Note: This summary is strictly limited to the analysis, findings and directions explicitly set forth in the provided opinion and does not add factual or legal matters beyond the opinion's text.

Show all summary ...

S.R Singh, J.:— Disputation in the instant petition centres round the order dated 16.8.1989 by which the petitioner's appointment as Asstt. Accountant in Chakaundh Farmers' Services (Co-operative) Society, Chakaundh, Banda, was terminated.

2. Factual matrix bearing on the controversy involved in this petition is that the petitioner entered the service of the respondent-society as Asstt. Accountant on a salary pegged at Rs. 300 per month. The appointment letter dated 24.12.1985 envisaged that the service was liable to be terminated at any time without any notice.

3. The services of the petitioner came to be terminated by means of the order dated 16.8.1989 with immediate effect. The termination of service purports to have been ordered under ‘Rule 4 of the U.P Sahkari Karamchari Seva Niyamawali’ and the petitioner was paid a month's advance salary pursuant to the resolution passed by the Sanchalak Mandal of the society.

4. Sri K.S Misra, appearing for the petitioner, canvassed, relying upon Regulation 85 of the U.P Co-operative Societies Employees Service Regulation, 1975, that the services of the petitioner were not liable to be terminated except after recourse to disciplinary proceedings against the petitioner in the manner embodied in the said regulation. In opposition, Sri K.M Sahai, standing counsel, mooted the maintainability of the petition stemming from the submission that the services of the petitioner were not governed by any statutory rules or regulations. The remedy if any, submitted the learned standing counsel, was to invoke the procedure of a suit.

5. In Ram Singh v. Kisan Sewa Sahkari Samiti Ltd., Nehru Nagar Naidu, Distt. Meerut, (1997) 2 UPLBEC 1102, a Division Bench of this Court held the view that Co-operative Societies not coming within the purview of Regulation 2(ix) of the U.P Co-operative Societies Employees Service Regulation, 1975, do not satisfy the test of being ‘State’ or ‘Authority’ within the meaning of Article 12 of the Constitution of India and therefore, no writ lay against such Co-operative Societies. The service regulation on which reliance was placed by the learned counsel appearing for the petitioner, commends itself for application to Co-operative Societies falling within the purview of Regulation 2(ix) which, for ready reference, is excerpted below.

“Co-operative Society means a co-operative society placed under the purview of the Board by Government Notification No. 336-C (xii)/C 3-26-71 dated March 4, 1972 as amended form time to time by notification issued under Section 122 of the Act read with Rule 389(a) of the Rules.”

6. The Co-operative Society in which the petitioner was employed, had its area of operation in a part of district Banda and there is nothing on record to be eloquent of the fact that it has been placed under the purview of the Institutional Service Board by means of the notification referred to in Regulation 2(ix) of the Regulations aforestated. In the above conspectus, the regulations referred to above, are not attracted for application to the petitioner and the society in the present case is neither ‘State’ nor ‘authority’ within the meaning of Article 12 of the Constitution.

7. Sri K.S Misra, appearing for the petitioner then cited the decision in Shiv Narain Shukla v. District Asstt. Registrar of the Co-operative Society U.P, Banda the ratio decidendi of which was that the termination of the services of an Accountant of Sahkari Samiti without following the procedure contained in Regulations 84-85 of the Regulations was illegal. In the said case, the question whether the U.P Co-operative Societies Employees Service Regulations, 1975 were intended for application to the concerned society namely Badosa Kshetriya Sahkari Samiti Ltd., Badosa, Distt. Banda was neither examined nor decided in its perspective and in view of conclusion that the society in the present case is not one, falling within the purview of the notification referred to in Regulation 2(ix) of the Regulations, the petitioner cannot derive dividend from reliance on the said decision which is premised on the provisions of the Regulations aforestated.

8. In Vijai Shanker Saini v. District Registrar Societies, U.P, Varanasi, 1997 (1) UPLBEC 262, as well, a learned Judge of this Court held the view that the society not being ‘State’ or ‘other authority’ within the meaning of Article 12 of the Constitution does not submit itself to the writ jurisdiction of this Court. The Court is however, conscious of the fact that the appropriate writ may issue against ‘any person’ particularly ‘any person’ discharging public function. The Court is also not oblivious of the fact that the Co-operative Society in the present case is engaged in performing some public function and there is an element of public interest permeating the performance of its duties and assayed in that perspective, the writ petition would be maintainable even if the society does not fall within the purview of ‘State’ or ‘instrumentality of State’ within the meaning of Article 12 of the Constitution in that Article 226 of the Constitution extends beyond the prerogative writs to issue of any order or direction against ‘any person’ or ‘any authority’ (Not being an instrumentality of State) for any other purpose and legal rights of an individual sought to be enforced may be founded upon a contract or a statute or an instrument having force of law. ‘The arm of the Court is long enough to reach injustice wherever it is found’. The distinction between public law and private law’ remedy by judicial adjudication is gradually getting marginalised and obliterated—See Air India Statutory Corporation v. United Union, (1997) 9 SCC 377. In K. Krishnamacharyulu v. Sri Venkateshwara Hindu College of Engineering, (1997) 3 SCC 571, the question was whether private institution catering to the needs of Educational opportunities, is amenable to writ jurisdiction of High Court under Article 226 of the Constitution. The Supreme Court held: “Private institutions cater to the needs of the educational opportunities. A teacher duly appointed to a post in private institution is entitled to seek enforcement of orders issued by the Government. When an element of public interest is created and institution is catering to that element, the teacher, the arm of the institution, is also entitled to avail of remedy under Article 226; the jurisdiction part is very wide………It is therefore, held that the writ petition is maintainable.” A Co-operative Society registered under the Co-operative Societies Act, 1965 and the Rules made thereunder may be a private body but it certainly caters to the needs of public and the employees being the arm of the society cannot be dealt with by the society in an arbitrary manner. Absence of arbitrariness 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. However, Section 128 of the Co-operative Societies Act empowers registrar to annul any resolution passed by the Committee of Management or the General Body of any Co-operative Society; or cancel any order passed by an officer of the Co-operative Society; if he is of opinion that the resolution or the order, is not covered by the objects of the society or is in contravention of the provisions of the Act, the rules or the by-laws of the society subject to fulfilment of the requirement of the proviso to Section 128, which envisages that the Registrar shall before making any order require the management committee, general body or officer of the co-operative society as the case may be to reconsider the resolution or the order within such period he may fix but it shall not be less than 15 days and if he deems fit, may stay operation of that resolution or the order during such period he may fix but it shall not be less than 15 days and if he deems fit, may stay operation of that resolution or the order during such period. The remedy under Section 128 of the Act available to the appellant, is thus quite efficacious one. In the circumstances of the case therefore, it would be but proper to relegate the petitioner to the remedy available to him under Section 128 of the Act.

9. Sri Misra, appearing for the petitioner, also placed credence on Supreme Court decision in U.P Co-operative Federation Ltd. v. Ram Singh Yadav, (1998) 1 UPLBEC 46 and a decision of this Court in Agya Prasad Pandey v. State of U.P, (1991) 2 UPLBEC 1167. The employee of the Co-operative Federation was removed from Service stemming from the reason that he failed to join the transferred posting. The employer gave the case a garb of abandonment of service and accordingly, cashiered him from service without following the procedure prescribed in Regulations 84-85 of the U.P Co-operative Societies Employees Service Regulation, 1975. The Supreme Court held that the order of removal was unsustainable. As noticed above, the provisions of U.P Co-operative Societies Employees Service Regulation, 1975 do not govern the service condition of the petitioner and hence, the decision of the Apex Court aforestated will not inure to the benefit of the petitioner. So far as the decision of this Court in Agya Prasad Pandey (supra) is concerned, that was a case of termination of service of a Forest Guard without complying with the requirements of Rule 4 of the U.P Temporary Government Servant (Termination of Service) Rules, 1975. On the facts of the present case, the said decision too does not commend itself for application.

10. In my opinion, the petitioner may either file a civil suit for appropriate relief or he may approach the Registrar under Section 128 of the U.P Co-operative Societies Act, 1965 for annulment of the resolution passed by Sanchalak Mandal of the Society pursuant to which the services of the petitioner were terminated. I feel called to observe in the circumstances that in case the petitioner prefers a representation to the competent authority exercising the power of Registrar under Section 128 of the Act, the latter shall dispose of the representation in accordance with law.

11. As a result of foregoing discussion, the petition fails and is dismissed subject to the observations/directions aforestated.