Madhya Pradesh High Court
Ramu Ram Sahu And Ors. vs National Co-Operative Consumers' ... on 2 January, 1990
Equivalent citations: AIR1991MP63, 1991(0)MPLJ530, AIR 1991 MADHYA PRADESH 63
JUDGMENT Y.B. Suryawanshi, J.
1. The petitioners, employees of respondent No. 1, the National Co-operative Consumers' Federation of India Limited ('N.C.C.F.' for short), have filed this petition under Article 226 of the Constitution of India, principally challenging the non-compliance of the policy of 'equal pay for equal work', and also discriminatory attitude in the payment of emoluments of fixed pay and daily wages to the ad hoc employees vis a vis regular employees of the same cadre, doing similar work.
2. The petitioners are all employees of the respondent N.C.C.F., posted in its Indore Branch. The petitioner No. 1 Ramu Ram Sahu is working since 7-5-84 as L.D.C. on a fixed pay of Rs. 662/r per month both the petitioners Nos. 2 and 3 are working as ID.Cs. since 10-8-84, on a fixed pay of Rs. 662/- per month; the petitioner No. 4 is employed since 23-1-84, as Junior Accounts Clerk also on fixed pay as above, whereas, petitioner No. 5 is employed since 12-1-84 as a Peon on daily wages at the rate of Rs. 15.90 per day.
3. According to the petitioners, the N.C.C.F. is a society registered under the Delhi Co-operative Societies Act, 1973, fully controlled by the Government of India and is an "instrumentality" of the Union of India created for the purpose of co-ordinating activities of the Co-operative Consumers' Societies in the States. The main object of the N.C.C.F. is to assist, aid and counsel its member institutions as per principles of cooperation and to facilitate their working and generally to act as Spokesman of Consumers' Co-operative movement in India and also to assist organisation and promotion of consumers' co-operative institutions. For the purpose of achieving its objects, the N.C.C.F. has been given liberty by its bye-laws to secure from the Government or other sources, requisite facilities, assistantance, financial aid. The membership, according to its bye-laws, is open to apex level Consumer Co-operative Federations in the States and other entities. The Government of India, the National Cooperative Union of India, N.A.F.E.D. or any other national level co-operative organisation on reciprocal basis constitute its membership. There is a "Board of Directors" of the N.C.C.F. which consists of: (i) one representative of the State Level Federation of Societies admitted to membership; (ii) 3 nominees of the Government of India; (iii) one nominee each of the National Co-operative Union of India, the National Co-operative Development Corporation of India, National Agricultural Co-operative Marketing Federation of India and any other national level co-operative organisation on reciprocal basis; (iv) the Managing Director-- (a) 9 Directors to be elected by the member consumer co-operative societies and other co-operative societies engaged in retail distribution of a consumer goods; (b) one Director to be elected by the member Central/Wholesale Consumers' Cooperative Society admitted to membership; and (c) not more than 2 eminent co-operators or economists or management experts, as may be co-opted by the Board of Directors, provided that the co-opted members shall have no right to vote. Under the bye-laws, even the "general body" cannot remove the Government nominees from the Board of Directors.
4. The petitioners have further averred that Shri Chatterjee, I.A.S., has been appointed as the "Managing Director"; and at present the Board of Directors has been superseded and Shri K.C. Pandya, I.A.S., has been appointed as Administrator in place of the Board. Therefore, the N.C.C.F. is an "instrumentality" of the Union of India and is fully controlled by it and is, therefore, 'State' within the meaning of Article 12 of the Constitution of India and it, therefore, cannot violate the fundamental rights of its employees.
5. It is further averred that the petitioners have been throughout discriminated in violation of Articles 14 and 16 of the Constitution of India. The respondents are not honouring the principle of "equal pay for equal work" in the matter of recruitment and also salaries with a view to keep on a precarious tenure, as ad hoc employees for years together in violation of the service regulations framed by the N.C.C.F. That Rule 7 of the N.C.C.F. Service Regulations prescribes the modes of recruitments and one of these modes is ad hoc and contingent appointment; that Rule 11 provides for ad hoc contingent appointment on a leave or short term vacancy on such terms and conditions as the appointing authority may decide and persons appointed on daily wages or monthly fixed wages shall be entitled to benefits of leave, overtime allowance provided to other regular employees of the N.C.C.F. as per rules; that they will not be regularised till they comply with recruitment and promotion Rules in force; that under Rule 11, ad hoc and contingent appointments could be made only in a leave or short term vacancy and such vacancy could not be said to be continued for 4 years and became regular vacancies; that even the daily wages employees and monthly fixed pay employees are entitled to benefits of leave, overtime allowance on par with other regular employees of the N.C.C.F. as per rules; that Regulation 19 of the Service Regulations provided that the scale of pay of various posts in the N.C.C.F. shall be as determined by the Board of Directors executive Committee from time to time; that in violation of the aforesaid service regulations as well as the rule of 'equal pay for equal work', the respondents are paying the petitioners fixed salaries of Rs. 662/- to petitioners No. 1 to 4, and Rs. 15.90 per day to petitioner No. 5; that the L.D.Cs, on fixed monthly pay are entitled to allowances under the Service Regulations also, but they are not being paid the same; that a regular L.D.C. is appointed in the pay scale of Rupees 390-12-450-EB-15-525-EB-18-650/- and in addition to the basic pay D.A., A.D.A. balance A.D.A., Institutional allowances etc. raise the total emoluments of a L.D.C. appointed on regular basis, to Rs. 1,500/- per month approximately. Similarly, the starting salary of a regular Junior Accounts Clerk is also Rs. 1,500/- approximately; but the petitioners are being paid Rs. 662/- per month only. A regular peon has the scale of pay of Rs. 300-6-330-EB-8-410; but the petitioner No. 5 is being paid Rs. 15.90 per day only. The petitioners' case is that there is absolutely no difference between the duties and working conditions of regular L.D.Cs. and ad hoc L.D.Cs. or regular Peon and daily wage Peon and they are performing the same duties as are being performed by regular appointees in their cadre.
6. It is also the contention of the petitioners that the respondents are paying similarly situated ad hoc employees at Kanpur the same salary as they pay to regular employees, of which instances have been quoted and so is the case with the Bombay region too. Thus, there is arbitrariness in the manner of recruitment and payment. Keeping senior ad hoc empoloyees in the ad hoc appointments and regularising junior ad hoc employees before them is also being practised by the respondents, which is clearly an arbitrary and discriminatory action, violative of Articles 14 and 16 of the Constitution of India.
7. The petitioners further contend, that they unsuccessfully made representations and have ultimately filed this petition for the alleged violation of Articles 14, 16, 19, 21, 23, 39(d), 41 and 42 of the Constitution of India, praying for an appropriate writ, direction or order to be issued against the respondents quashing the system of payment of fixed pay or daily wages to ad hoc employees; and to pay to the petitioners from the date of their appointments salary equivalent to the salary being paid to regular employees of the same cadre with all allowances payable to such regular employees as also to regularise the petitioners and similarly placed ad hoc employees and not to keep them on ad hoc appointments for indefinite periods.
8. Notices were ordered to be issued to the respondents to show cause and reply has been filed by respondent No. 3, the Regional Branch Manager of the N.C.C. F. at Indore. A prelimimary objection has been raised, based on the misjoinder of the causes of action. It is further stated that except petitioner No. 5 Dinesh Kumar Yadav, who has since resigned with effect from 1-4-88, the remaining 4 petitioners are still working with the N.C.C.F. at Indore but their wages have since been upwardly raised in order to conform with the requirement of the Minimum Wages Act and other provisions of law, to Rs. 781/- per month with effect from 1-5-1987, that the N.C.C.F. is a co-operative society registered under the Delhi Co-operative Societies Act, 1973 and later came under the operation of the Multi-States Co-operative Societies Act, 1984, vide Section 2(b) of the said Act; that the N.C.C.F. is an autonomous co-operative organisation registered under the said Act of 1984 and enjoys all freedom and autonomy of a co-operative organisation and it is neither fully controlled by the Government of India nor is it an instrumentality of the latter. The bye-laws provide for appointment of Managing Director, who need not necessarily be from the Government and there were occasions in the past when the N.C.C.F.'s own officers were appointed as Managing Directors (the Board of Directors of the N.C.C. was superseded in terms of the Multi-State Co-operative Societies Act, 1984 and its rules framed thereunder by the Central Registrar of Co-operative Societies, Delhi and an Administrator was appointed, who again need not necessarily be a Government officer in view of the concerned provisions. Thus, it is stated to be merely a co-incidence that the present Managing Director and the Administrator are from the I.A.S.; that there is no violation of Articles 14 or 16 or other Articles of the Constitution of India, as alleged; nor is there any violation of the Service Regulations framed by the N.C.C.F. The averments that the petitioners have been kept on a precarious tenure as ad hoc employees for years together in violation of the N.C.C.F. Service Regulations are denied and also that there is no difference between the duties and working conditions of regular L.D.Cs./J.A.Cs. and ad hoc L.D.Cs./J.A.Cs. or regular peon and daily wages Peon, that the circumstances under which the employees at Kanpur and Bombay are working are different and their cases are not comparable with the petitioners; the allegations regarding arbitrariness and discrimination are also denied; that the wages of the petitioners are according to the norms prescribed under the Minimum Wages Act and cannot be said to be below the subsistence level, and that there is no violation of fundamental right of the petitioners, as alleged.
9. Besides the cause shown above, as meanwhile the petition was admitted on 9-1-1989, additional return was filed by respondent No. 3, requesting at the same time that the reply dated 31-10-1988 be treated as return. It is stated that the comparison of ad hoc employees and fixed wages employees with the regular employees is unwarranted since the case of the petitioner comes under the preview of Service Regulations whereas the ad hoc employees would be governed by Clause (a) of Rule 11 and both these provisions lay down different service conditions for different types of employees. Hence, there is no discrimination and the petitioners cannot claim any right to the regular posts or any regular salary, which is paid to the regular employees. Referring to Section 74 of the Multi-State Co-operative Societies Act, 1984, it was stated that this petition is premature as there is an alternative remedy and such dispute shall be referred to the Central Registrar, and pending decision by the Central Registrar or by an authority duly empowered under Section 76 of the Act, interference under Article 226 of the Constitution is not warranted; that in the appointment orders, the petitioners are shown on fixed wages and the respondents are under no obligation to give them salaries as are being paid to regular employees in accordance with the rules or service Regulations of the respondents. There is a reference to the rejoinder, but on examining the record, we find that no rejoinder by the petitioners was filed.
10. Shri V.S. Kokje, learned counsel for the petitioners; and Shri A. Saleem, learned counsel for respondent No. 3, heard, the controversies relate to the following points First, whether the N.C.C.F. is an intrumentality' of the State within the meaning of Article 12 of the Constitution of India?; secondly, whether the petitioners have an efficacious alternative remedy? Thirdly, whether the petitioners are entitled to equal pay for equal work as claimed by them, and fourthly, whether the petitioners are entitled to the reliefs prayed for?
11.(a) Appropos the first point and the preliminary objection raised by the respondents, Article 12 of the Constitution of India provides an inclusive definition of the term "State" by saying -- "In this part, unless the context otherwise requires, the State includes the Government and Parliament of India, and the Government and State Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India". About 12 important decisions of the Supreme Court have been considered in a recent judgment in Tekraj Vasandi alias Basandi v. Union of India, AIR 1988 SC 469, and, therefore, it would be convenient to refer this decision alone, in which we find all the aforesaid authorities discussed and the tests/factors for determining the term "State" have been laid down, (b) In Tekraj Vasandi's case (supra), the question for consideration was; whether the Institution of Constitutional and Parlimentary Studies (for short, called the I.C.P.S.) is "State". In paras 15 to 20, with reference to the I.C.P.S., it was observed that it was born as a voluntary organisation to fulfill the fealing that there should be an association mostly consisting of members of the 2 Houses with some external support, particularly, to meet the situation as it arose out of the independence. Initially, the society itself was accommodated in the Parliament House but in due course, it was shifted to another place. The President, the Speaker, Ministers, former Chief Justice of India, former Attorney General held high offices and were associated with the society. Even services of the employees of the Parliament were lent to the society, the objects of the society were not Government business but were certainly aspects, which were expected to equip Members of Parliament and the State Legislatures with the requisite knowledge and support for better functioning. Many of the objects adopted by the society were not confined to the two Houses of Parliament and were intended to have an impact on the society at large. The memorandum permitted acceptance of gifts, donations and subscriptions. Even for its functioning, Ford Foundation a U.S. based trust had extended support for some time. The annual contribution from the Government has been substantial and in fact. Their Lordships observed "that the main source of earning was from the Government, yet some money has been coming from other sources." In later years, foreign funding came to be regulated and it became necessary to provide, that without Government clearance, like any other institution, the I.C.P.S. not to receive foreign donations. The aspect regarding "the manner of functioning" of the society has also been mentioned. The accounts of the society are strictly maintained and subjected to an audit, in the same way as the affairs of societies receiving Government grants are to be audited. The usual conditions were there which are imposed by the Government when grants are made. In para 19, at page 480. Their Lordships further considered the report of the Tripathi Committee, and also correspondence by the Minister of Law with the Executive Chairman of the Society indicating that the Minister has tried to exercise his authority as the controlling Department of Government in the matter of making the grant. These were not regarded as "conclusive features". Then, it was observed, that, in a welfare State Government control is very Pervasive and in fact touches all aspects of social existence. In the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into an agency or instrumentality of the State. A board picture of the matter has to be taken and a discerning mind has to be applied, keeping the realities and human experience in view so as to reach a reasonable conclusion, "Ultimately, their Lordships stated, that on a consideration of the facts of the case, the I.C.P.S. cannot be held, an agency or instrumentality of the State so as to come within the perview of 'other authorities' in Article 12 of the Constitution. It was further observed, that its employees did not become employees holding Civil Posts so as to become entitled to the cover of Article 311 of the Constitution and they would, however, be entitled to the benefits of Part-Ill of the Constitution of India. In that case, the learned counsel had made a concession during the course of hearing (Refer Para 2) but on his prayer. Their Lordships considered only question whether the I.C.P.S. is "state" or not.
12. Their Lordships then proceeded to consider the decision in Rajasthan, State Electricity Board, Jaipur v. Mohanlal, AIR 1967 SC 1857, the first judgment in point of time, and referring to Bhargawa J., quoted (at p. 1862 of AIR):--
"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, and we do not see any reason to narrow down this meaning in the context, in which the words "other authorities" are used in Article 12 of the Constitution."
Then referring to the observations of Shah, J., as he then was, it was quoted that (at p. 1864 of AIR) :--
"In determining what the expression 'other authorities' in Article 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions, which may be imposed upon the exercise of certain fundamental rights.".....
"In my judgment, authorities constitutional or statutorily invested with power by law, but not sharing the sovereign power do not fall within the expression "State" as defined in Article 12. Those authorities, which are invested with sovereign powe, i.e. power to make rules Or regulations and to administer or enforce them to the detriment of citizens and others, fall within the definition "State" in Article 12, and constitutional or statutory bodies, which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of Article 12 of the Constitution."
13. Then Sabhajit Tweary v. Union of India, AIR 1975 SC 1329, has been referred. Therein, the status of the Council of Scientific and Industrial Research was examined. Their Lordships observed:--
"This Court took note of the fact that the council was a society registered under the Societies Registration Act. Under Rule 3, the Prime Minister of India was the ex-officio President of the society and under Rule 3, the governing body consisted of persons appointed by the Government of India representing the administrative Ministry, under which the Council of Scientific and Industrial Research is included and the Ministry of Finance. The Court also took note of the manner in which the affairs of the Society including funding, were conducted."
Ray, C.J., observed (at pp.1330-1331of AIR) :--
"Extracting the features as aforesaid it was contended, that these would indicate that the Council of Scientific and Industrial Research was really an agency of the Government. This contention is unsound. The society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution, and functioning of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems effecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the council towards the development industries in the country are carried out in a responsible manner."
14. Then, referring to Ajay Hasia's case, AIR 1981 SC 487, it was observed, in para 10, (at page 477 of Tekraj, AIR 1988 SC 469) that the Engineering College was also a society registered under the Jammu & Kashmir Registration of Societies Act. The Court considered the objects, as set out in Memorandum, the powers of the State Government to make appointments, as also the fact that State Government with the approval of the Central Government, had the power to take such action and to issue directions as are necessary in respect of all matters relating to Functioning of the college. Though the founding members were enumerated in Memorandum, the Chairman was to be appointed by the State Government, with approval of the Central Government, Besides, one representative of Central Government, -other State Governments Rajasthan, U.P. and Jammu & Kashmir also appointed official representatives. In Ajay Hasia's case (AIR 1981 SC 487), the decision in Sabhajit Tewari's case (AIR 1975 SC 1329) (supra) was referred to and distinguished, and the TESTS laid down in Remanna Shetti v. International Airport Authority of India, AIR 1979 SC 1628 were approved.
15. In Tekraj's case, AIR 1988 SC 469, which we are principally referring, Sukhedev Singh's case, AIR 1975 SC 1331 has been discussed, in paras 7 and 8, at page 474, in respect of Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation, each set up under special statutes, concluding, that these statutory bodies are "authorities" within the meaning of Article 12. Then there is special reference to Section 25 of the Oil and Natural Gas Commission Act, which authorities the Commission to issue "binding directions to third parties" and "disobedience of such directions is punishable." The other cases, which have been considered in Tekraj's case (supra) are B.S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363 and P.K. Ramchandra Iyer v. Union of India, AIR 1984 SC 541. The Indian Statistical Institute is a registered society and the Court found, that the entire money for funding was provided by the Central Government, and even if any other money was to be received by the Institute, it could be done only with the approval of the Central Government, and the accounts of the Institute were to be submitted to the Central Government for its scrutiny and satisfaction; the society had to comply with all directions issued by the Central Government and the control of the Central Government was "deep and pervasive" and the I.S.I, was held an "instrumentality" of the Central Government, and as such, an 'authority' within the meaning of Article 12 of the Constitution. In Ramchandra Iyer's case (supra), the question for consideration was whether the Indian Council of Agricultural Research (I.C.A.R.) was an agency of the "State". It was also a registered society and the court found, that when it was set up, it was an "integral Department" of the Government of India, and later became an attached office of the Government of India, and had not undergone any change when it got transferred into a society. In both these cases, the tests indicated in the International Airport Authority's case (AIR 1979 SC 1628) (supra) were applied.
16. The relevant tests gathered from the decision in the International Airport Authority's case (supra) have been summarised as follows:--
"(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 of Government;
(2) Where the financial assistance of the State is so such as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with Governmental character;
(3) It may also be a relevant factor, whether the corporation enjoys monopoly status, which is state conferred or state protected;
(4) Existence of deep and pervasive State Control may afford an indication that the Corporation is a State agency or instrumentality;
(5) If the functions of the Corporation are of public importance and closely related to Governmental functions, if would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a Corporation, it would be a strong factor supportive of this inference of the Corporation being an instrumentality or agency of Government."
"We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is; whether it is an instrumentality or agency of the Government and not as to how it is created. The enquiry has to be not as to how the juristic Person is born, but why it has been brought into existence."
17. In those decisions, it has also been observed that those tests are "not conclusive or clinching" and "there cannot, indeed, be a straight jacket formula" and, therefore, a conclusion would turn on "the facts of a particular case, some of the features may emerge so boldly and prominently that the court may take a view that the institution is 'State'".
18. After considering all those facts and circumstances, their Lordships held, that the I.C.P.S. is neither an agency nor an instrumentality of the State so as to come within the sweep of 'other authorities' in Article 12 of the Constitution.
19. So far as the N.C.C.F. is concerned, we would give further reasons later, for our view, that it is not 'State'. However, we may refer here to a decision of the Delhi High Court, reported in D.C. Kapoor v. A.K. Agarwal, 1989 Lab IC 940, in which a few decisions already referred above, decided by the Apex Court, have been considered, and on facts and circumstances, it has been held by a Single Brother Judge of that High Court that N.C.C.F. is "State". We have perused that judgment and the conclusions appear in the last sub-para of paragraph No. 28. It stated:--
"Taking into consideration all the relevant factors in the present case, namely, the manner of appointment of the Chief Executive, the nomination of three directors on the board of the respondent-federation, the extent of investment of the Government in the share capital of the respondent, the manner, in which the lists are to be prepared for appointment to the managerial posts as envisaged by Section 50 of the Act, and lastly, the power given to the Central Government under Section 47 of the Act, only points to one conclusion, and that is that the respondent-federation is an instrumentality or agency of the Central Government and is, therefore a "State". Before parting, one other factor, which may be relevant, is that in the performance Budget of the Ministry of Food and Supplies, the respondent federation is shown to be an organisation, which is under the administrative control of the department. In view of this admission, it is not open to the counsel for the Central Government to contend that the respondent-federation is not a "State". The present petition under Article 226 of the Constitution is, therefore, clearly maintainable."
20. Now, in view of TESTS and guidelines referred in the decisions and in the perspective of the Multi-State Co-operative Societies Act, 1984 and bye-laws of the N.C.C.F., we find the following bold features for the conclusion drawn :--
First: The object mentioned in the Multi-State Co-operative Societies Act, 1984 (Act No. 51 of 1984) is "An Act to consolidate and amend the law relating to co-operative societies with objects not confined to one State and serving the interests of members in more than one State". The Bye-laws, as per Section 9(2) (a) have to be consistent with the provisions of the Act or Rules. Bye-law No. 3 of the N.C.C.F. enumerates in (i) to (xiv) activities of which a passing reference has been made by us in para 3 (supra). For brevity, we may add, that the objects include, creation and promotion of the formation of cadres of employees for the N.C.C.F. and member institutions, securing from the Government or other sources requisite facilities, assistance and financial aid both for itself and member institutions, holding of seminars, conferences, meetings and to undertake publicity, propaganda and similar other activities that may help the development of consumers' cooperative movement; co-ordinate the working of its member institutions, etc. Secondly: Section 19 of the Multi-State Co-operative Societies Act, 1984 read, with Bye-law 4 relate to Membership. It is a long list (a) to (h) and the Government of India or State Government (under the Act) could be its members. That membership extends to various categories listed in Bye-law No. 4 and includes NAFED or other National level cooperative organisations. The membership is very broad-based.
Thirdly; Funding; According to Bye-law 15, these could be raised by issuing shares, taking loans and advances from Government and other agencies, deposits from members, donations, grants, subscriptions and contributions, advertisements, etc., admission fees. Thus, there are multiferious sources.
Fourthly: Share Capital; The authorized share capital Bye-law 16 (1) shall be Rs. 10 Crores consisting of 50,000/- shares of Rs. 2,000/- each to be subscribed by members, Pausing here, the Delhi decision, 1989 Lab IC 940 (Delhi) where, it seems, parties places materials showed, that the Central Government as a member contributed 45 per cent of capital, yet, the fact is that the remaining major share capital of 55 per cent was from other sources, such as State Federations, member Co-operative Societies, Apex bodies/NAFED.
Fifthly: The functioning under bye-laws 19(a) the supreme authority of the Federation is vested in the General Body of Members" Clause (b) refers to the Composition of this body. Thus, there is one nominee of each member institution, but only one nominee of the Government of India, besides nominees of other legal entities. Clause (c) entitled every delegate/nominee/representative to exercise only one vote. Clause (f) refers to the purpose, namely, approval of the programme of the activities of the federation prepared by the Board of Directors, election of the member to board of Directors other than nominated members and consideration of audit report and annual report, etc. Bye-law 21 refers to duties and powers of the General Meeting Bye-law 24 refers to the Board of Directors, which consists of at least 10 members, as described therein, and only 3 nominees of the Government of India. But it does not show that the Government will have majority. Bye-law 27(i) to (xxiv) refer to various powers of the Board, which includes framing of regulation, of regulation, recruitment, promotion etc. Then there is Executive Committee in Bye-law 29 besides Business Committees. The powers and duties of the Managing Director are found in Bye-laws 34 and 35. The internal audit and check are arranged by the Board of Directors. The corresponding provisions about membership, voting, Board of Directors powers of the Board, nomination by the Central Government and State Government, may be seen in Sections 19, 22, 32, 41 and 42 of the Act, 1984, Section 47 of that Act provides that the Central Government in public interest or for the purpose of securing proper implementation, etc. may make directions, which shall be complied with by those Multi-State Co-operative Societies. Pausing here it may be mentioned that the Government has also a financial stake in the running of those institutions and may also give grants, loans and subscription in the share capital; and such powers are not unusual. Under Section 50, the Central Government constitutes a body of persons in the manner prescribed for the preparation of a list of persons eligible for appointment to the post of Chief Executives and other Managerial posts in those societies, the maximum pay-scales of which exceed such amount as may be prescribed. Clause (b) thereof refers to the regulations of recruitment and remuneration of such officers. This, in essence, the functioning of the N.C.C.F. is footed in democratic set up. It will not be out of place to mention here that the co-operative movement, in spite of promotional policies and incentive barring a few States like Maharastra, has not caught with the progress and that is why the Government encourgement is necessary. Looking to the sorry state of affairs in many co-operative societies as is the experience. The financial control and supervision also appear to be essential ingredients in public interest. As regards the contention that at present, the post of the Managing Director is manned by an I.A.S. officer and there is an Administrator but such are said to be the temporary phases of an institute. They arise temporarily for certain periods. There may be managerial difficulties at high posts and that is why the officers, who have expertise, could be taken on deputation.
Sixthly: The monopoly position is not conferred on the N.C.C.F. and its associates, but the objects are quite clear, as referred earlier, and those bodies, though they have entered the commercial field, have to compete with other private enterprises, if they are to succeed. Merely because the organisation, in the allocation, is put in the Administrative control of a particular Ministry, that alone would not turn the N.C.C.F. into a Department of the Ministry. Looking to all these facts, we respectfully disagree with the view taken in the Delhi decision.
21. To conclude, for the reasons aforesaid, the N.C.C.F. is neither 'an instrumentality' nor an 'agency' of the "State" within the meaning of Article 12 of the Constitution of India. In view of this conclusion, it is unnecessary to consider the other points referred in para 10 (supra). However, out of deference, we may simply mention that during the course of arguments, we have considered the following decisions on the aspect of "equal pay for equal work", namely:--
(1) Jaipal v. State of Haryana, AIR 1988 SC 1504;
(2) Bhagwan Dass v. State of Haryana, AIR 1987 SC 2049;
(3) Surendra Kumar Saxena v. State of M.P., 1988 MPLJ 519;
(4) P.K. Ramchandra Iyer v. Union of India, AIR 1984 SC 541;
(5) Daily R.O. Labour, P & T Deptt. v. Union of India, AIR 1987 SC 2342;
(6) Federation of A.I. Customs & Central Excise Stenographers v. Union of India, (1988) 3 SC 91 : (AIR 1988 SC 1291).
(7) P. Savita v. Union of India, AIR 1985 SC 1124 on the plea of alternative remedy, learned counsel for respondent No. 3, Shri Saleem, referred to two cases :--
(1) Amarsingh v. Mandi Committee, Gohed (1988 MP Weekly Notes Vol. II, Note No. 59 at page No. 95). (2) Habib Nathu v. Indian Oil Corporation (1988 MP Weekly Notes Vol. II, Note No. 151 at page No. 227).
22. In the result, this petition is dismissed. However, in the circumstances of the case, the parties shall bear their own costs of this petition. The account of security deposit, if any, shall be refunded to the petitioners, on verification.